THE / TREATY-MAKING POWER OP THE UNITED STATES BY CHARLES HENRY ^TLER OF THE NEW YORK BAB VOL. I. Part I. The United States is a Nation. Part II. Historical Review of the Treaty-Making Power of the United States. THE BANKS LAW PUBLISHING CO. 21 MUKRAY STREET, NEW YORK 1902 Copyright, 1902, By The Banks Law Publishing Co. 8 O to o Eh M O S! CO ^"■70 B.5/r •a/ 3: 00 These volumes are dedicated with affection and respect to the memory of my grandfather BENJAMIN FRANKLIN BUTLER whom the Historian Bancroft described as "ever the upright statesman." He was born at Kinderhook Landing (Stuyvesant) New York, December 14, 1795, and died at Paris, France, November 8, 1858. He was appointed in 1824 a Commissioner to Revise the Statute Laws of the State of New York. He was Attorney-General of the United States from 1833 to 1838 during the administrations of Andkew Jacksox and Martin Van Buren, and for a part of that period he was also Secretary of War. On more than one occasion, while he was Attorney- General, he sustained THE treaty-making POWER OF THE UNITED STATES before the SUPREME COURT while John Marshall, was the Chief Justice and Joseph Story an Associate Justice of that august tiibunal. " There were giants in the earth in those days.'''' PREFACE AND DEDICATORY KOTB. A little over a year ago the original inanuscript of this work, upon which nearly three years had then been spent, was handed to the publisher with the hope and expectation that the single volume then in contemplation would be completed and offered to the reading public within the fol- lowing sixty days. Such hope and expectation, however, failed to be realized as the necessity for revision of, and ad- ditions to, the original manuscript and the pages as they re- turned from the printer, resulted in expanding the work to its present proportions, and in dela3'ing its publication until the present time. The increased bulk of these volumes it is hoped, is, to some extent, atoned for by the thoroughness with which they have been indexed, for that part of the work can be referred to without egotism as it has been done almost, if not entirely, by Mr. E. E, Treffrey whose ability as an analyzer and indexer of works of this nature has earned for him a well deserved reputation. The selection of the subject-matter of these volumes was the natural outcome of my investigations into the nature and extent of the treaty-making power of the United States during my connection in 1898 with the Anglo-American Joint High Commission, particularly in regard to the extent of the power of the United States to enforce, by appropriate Federal legislation, treaty stipulations in regard to matters which, in the absence of treaty relations, would be wholly 11 PREFACE. within State jurisdiction. Tlie result of such investigations appears in chapter XV of volume II, but after the conclu- sions there stated had been reached and even after my con- nection with the Commission had ceased, the subject con- tinued to interest and fascinate me, and so held my attention that I determined to make it the basis of a work in which the treaty-making powder of the United States in all of its varied phases and aspects should be the principal subject in- stead of being, as until the present time it generally has been, the subject merely of a subdivision, or of a chapter, in ■works on constitutional and international law. It has been impossible, however, to cover the subject as thoroughly as was originally intended, because, as the work has pro- gressed, new branches and subdivisions have constantly ap- peared, and doubtless if they had not been brought to an abrupt close these volumes might have been indefinitely in- creased in size, and delaj'^ed in publication. The expansion of the work has to a great extent been caused by the addition to volume I of the Insular Cases Appendix w' hich contains an abstract of all of the decisions and opinions of the Supreme Court of the United States in the cases decided in May and December, 1901, which involved the status, so far as the revenue provisions of the Constitution are concerned, of our newly acquired possessions ; and also of the Treaties Appendix to volume II which contains a list of treaties and agreements, and proclamations affecting our relations, with foreign countries, arranged alphabetically according to coun- tries, and which, owang to the great pains and labor of Captain Osgood Smith of the New York Bar and now of Havana, who assisted me in its preparation, is probably more complete than any other published list of treaties and procla- mations. The delay in publication has largely been on account of the rapidity with which " history-making " has progressed PREFACE. m during the preparation of ttiese volumes. The deaths of Queen Victoria and President McKinley were undoubtedly the two most important historical events of 1901, but those having the most important bearing upon the treaty-making power were the decisions on May 27th and December 2d, of the Supreme Court in the Insular Cases which have already been referred to, and the negotiation and ratification of the Hay-Pauncefote treaty by which the Clayton-Bulwer treaty of 1850 was superseded and abrogated. As these, and other, events happened after much of the matter was actually " in plate " they necessitated changes and delay. Even now, as this book goes to press, and it is too late to make more than a brief mention thereof, (p. 457, vol. I) the irrepressible con- flict between the Senate and the House of Eepresentatives as to the necessity of legislation to make treaty stipulations not only obligatoiy as contracts, but also effectual as laws, has been reopened ; and the question which, as Senator Cullom declared, has been debated for over a century in both Houses of Congress without reaching any decision, has once more assumed serious and practical importance. It has, indeed, been a temptation to delay the publication until some defi- nite conclusion shall have been reached in the pending con- test, but it has been resisted, and should any additional treaty history be made, or treaty law be newly expounded, reference thereto will have to await the publication of further editions, if any shall ever be warranted by the reception accorded to this. That which has most impressed itself upon me as I have prepared these pages is the magnitude of any element of con- stitutional law ; indeed the grandeur of the Constitution it- self, not only as the subject of study but as the " great charter of our liberties " as it was fitly called by Justice Story in his opinion in the great case of Martin vs. Hunter must steadily grow upon an}'- one who carefully studies it ; the IV PKEFACE. Avords then uttered by that great jurist have a lasting signif- icance, and they will be as applicable in the future as they are to-day and were in 1816 when he declared : " The instru- ment was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence " ; and who can fail to be hnpressed with the wisdom of its fraraers who " foreseeing that it would be a perilous and difficult, if not an impracticable, task to provide for minute specification of its powers, ex- pressed them in general terms, leaving to the legislature from time to time, to adopt its own means to effectuate legitimate objects, and mould and model the exercise of its powers as its wisdom and the public interests should demand." Surely the temptations which those men in Philadelphia resisted to insert specifications and details applicable to then existing circumstances must have been strong indeed, and all praise must be given to them, in that they were able to rise above local and temporary exigencies and frame an instrument which is to-day as true a chart and compass for a great world power as it was then for an infant nation struggling for existence. In presenting this my first work of any magnitude, I ac- knowledge that it must contain many errors and that much has been omitted which should have found a place therein, and indulgence is asked for all these faults. I also know that some of the opinions which have been expressed differ from those held by men whom no one respects more than I do. Questions involving the construction of our Constitution al- ways have been, and always will be, debatable ; it is well for our country that it is so, as it is only by the earnest presenta- tion of both sides of every question that truth is finally reached and safe rnethods adopted. In expressing my own opin- ions, however, an effort has been made to place the reader in PREFACE. V possession of the views of others and to furnish such refer- ences as will enable them to form their own conclusions. These volumes have been dedicated to ray grandfather, but, in order that the name of my father, William Allen Butler, may also in some manner be linked with them, they will make their lirst appearance on that anniversary of his birth (February 20, 1825), on which he completes the seventy- seventh year of his life. For more than fifty-five years he has been a member of the New York Bar in active practice ; he has been President of the American Bar Association and also of the Association of the Bar of the City of New York. On this day, and under these circumstances, it certainly is justifiable for me to refer to the words uttered on an appro- priate occasion by the Honorable Joseph H. Choate a few weeks ago, just before he left this country to resume those duties as our ambassador at the Court of St. James, which he is so gracefully and efficiently performing, in which he described my father as " the very Dean of our profession and entitled to be so called not only by reason of his seniority, but also from his character, and the manner in which, during his more than half century of practice, he has constantly up- held the honor and dignity of the Bar." Had these volumes been dedicated to any person other than my father or grandfather, two names would have presented themselves to me between which it would have been hard for me to have chosen. Delivering the manuscript to the publishers about a year ago, while the members of our profession were universally preparing for the appropriate celebration of the centennial anniversary of his appointment as Chief Justice of the Su- preme Court of the United States, the name of that great jurist, John Marshall, naturally presented itself to my mind, and as my work has progressed, my veneration and respect VI PREFACE. for him whom John Randolph used affectionately to call "the Great Lord Chief" has constantly increased, for it is perhaps more to him than to any other single man that this country owes to-day its ability to stand among the other nations on an equal footing as a fully sovereign power, un- shorn of any element of national strength or trammelled with the fetters of strict construction by which at one time it was threatened to be strangled. In fact, Mr. Garfield might well have added to that eloquent passage in his mem- orial address, in which he declared that Marshall found the Constitution a skeleton and clothed it with flesh and blood, that the Chief Justice also breathed into the body, which he thus really created, the breath of national life and sovereign power without which it would have remained an inert mass, but through the possession whereof it has been able to live and move and have its being. It is hardly necessary to mention the other name for that of William McKinley must naturally suggest itself to the reader. It was largely due to his kindly inspiration and the friendly interest which he ever expressed in this and other work undertaken by myself that this book ^yas conceived in its concrete form and the earlier portions thereof completed. During our last interview the plan and scope of these volumes were discussed and the desire which he expressed to see them completed was one of the inspiring influences which sustained me while the work was in progress. That Mr. McKinley was pre-eminently appreciative of the value and extent of the treatj^-making power of our govern- ment, was evidenced by those utterances in his Buffalo speech which, in view of the tragic events of the following day, were strangely mystical and prophetic ; and surely it was not by chance, for the hand of God was clearly discernible, that on the very last day on which it could possibly have occurred, he declared that the day of reprisals was past. PREFACE. Vll uiul the day of reciprocity treaties had come, that God and mail had joined tlu; nations to<^'ethei', that our ships of war must now be white winged messengers of peace. Surely it can well be said of him that this country is the greater from the way in which he lived and did his work, and is the better for the noble, Christian manner in which he passed from this earth unto his lasting reward, leaving precious memories in the hearts of all his fellow citizens whom he loved and served so well. But his words must be heeded and no monument erected to the memory of William McKinley, no matter how great or liow grand it may be, can ever atone for the insult which will be offered to his memory if the pledges made to Cuba during his administration shall not be carried out in letter and in spirit. He, to whom the great industries of this country owe so much and who could never have had one thought which could do them harm, stood ])ledged to give assistance as well as freedom to that island whose nearness to our coasts made us her natural protector ; and now that he has gone a double duty rests upon us to fulfil those pledges, not only for the sake of Cuba but for his honor and our own. Before closing this preface it is my great pleasure to grate- fully acknoudedge the assistance which has been received dur- ing the preparation of these volumes from many kind friends ; it is impossible to enumerate them all but I wish especially to thank the Honorable Orville H. Piatt, United States Senator from Connecticut, the Honorable Elihu Eoot, Secre- tary of War, Dr. David J. Hill and Mr. Alvey A. Adee, As- sistant Secretaries of State, Mr. Andrew H. Allen, keeper of the Rolls and Archives in the State Department and Mr. Charles G. Phelps Secretary of the Senate Committee on Relations with Cuba, for the many courtesies extended to, and documents obtained for me. vm PREFACE. This work was commenced in Washington during my so- journ there of 1898-1899, but for the past two years it has been carried on in New York almost entirely in the building of the Association of the Bar of the City of New York and it is not only my duty, but also my pleasure, to express in more than a merely perfunctory manner my appreciation of the great assistance rendered to me by the Librarian and the entire staff of the Association. As an almost daily vis- itor to the librar\^ for over two years I have had every oppor- tunity of testing the efficiency of the staff in charge of the building and the library and in every res^^ect it has been tried and not found wanting. My work for the present is finished. That of my readers now commences — my greatest hope is that they will not find their task in perusing these pages less interesting than mine has been in writing them. C. H. B. Bab Association Libkaky, New York City, February 20, 1902. TABLE OF CONTENTS OP VOLUME I. I. Preface i II. Table of Contents ix III. List of Authorities referred to xxiii IV. Table of Cases xli INTRODUCTION. views of the author on the treaty-making power of the united states, and the method of its discussion as the surject-matter of this volume. pages 1-14. Section page 1 — Government of the United States one of enumerated powers. 1 2 — Exceptions to general rule of limitations of power 4 3 — Author's general views as to extent of treaty-making power. 4 4 — State legislation not necessary to carry out treaty stipula- tions 6 5 — Treaties made by United States Government binding on all States 6 6 — TreatiL s the Supreme law of the land 7 7 — Sources of author's information and grounds of his opinion. 7 8 — Nationality and Sovereignty of the United States to be first considered 9 9 — Plan of discussion of subject 10 10 — This work confined to United States law and decisions; other work contemplated by author 13 PAET I. THE UNITED STATES IS A NATION. CHAPTER I. THE NATIONALITY AND SOVEREIGNTY OP THE UNITED STATES. PAGES 15-70. Section 11 — Definitions of Terms used in title of chapter 15 Note by author on definitions: "Nationality," 16. "Sovereignty," 16. Bluntschli's views, 18. Cool- ey's views on sovereignty, 19. Curtis's defini- tion, 20. J. R. Tucker's views, 2-2. Bliss on Sovereignty, 23. Tucker's Blackstone, 23. Mean- ing of "United States," 24. Attorney General Griggs's position, in Insular cases, 28. iz X TABLE OF CONTENTS. Section pagb 12 — The United States is a Nation 17 13 — States' Riglits School and Broad Constructionists 28 Note on Kentucky and Virginia Resolutions, 29. 14 — Eras of Constitutional History of the United States 30 15 — Marshall, Story and Gray; Calhoun, Taney and Tucker 31 16 — John Randolph Tucker's views 32 17 — Discussion limited to the treaty-making power 33 18 — Duality of Government of United States 33 19 — Extent of original State sovereignty 34 20— Original nationality and sovereignty of Central Government. 37 21 — Residuum of power 38 22 — Powers reserved to States relate to internal affairs 39 23 — Proposition supported by eminent jurists 41 24 — National Unity expressed in Preamble of Constitution 42 25 — Ratification of Amendments by States result of delegation by People 42 26 — Supremacy of General Government as to objects within its domain 43 27— Meaning of " The People of the United States " 45 Curtis on Marshall and Story, 46. Professor Von Hoist, 48. 28 — ^Views of Chancellor Kent and Joseph Story 47 29 — Samuel F. Miller's views 52 30 — Justice Field's opinion 53 31 — Views of Justices Gray and Bradley 54 32 — Navassa Islands case 56 Note on Guano Island Statutes and data, 56. 33 — Right of United States to acquire territory 60 34 — General consensus of opinion in support of Nationality of United States 61 85 — Gradual development of theory of Nationality 61 36 — Limitations by fundamental principles 62 37 — Views of ex-President Harrison 63 38 — Unsoundness of Mr. Harrison's views 64 39 — Fundamental principles and the first ten amendments 65 40 — Congress compared, as to powers in national matters, with Parliament of Great Britain 67 41^^imultaneous development of nationality and limitations by fundamental principles of natural and healthy growth. . . 69 CHAPTER II. the nationality and sovkreignty of the united states as evi- denced by acquisition of tekritory. pages 71-136. Section 42 — Development of United States from a Confederation into a Nation; recognition of Sovereignty 72 43 — Right of sovereign powers to acquire territory 72 Note on transfer of Territory; views of Publicists: Pomeroy, 72. Halleck, 73. Lawrence, 76. TABLE OF CONTENTS. XI Section paok 44 — Methods of acquisition of territory 78 Note oa acquisitions of territory by Uuited States. Ex- tract from " Our Treaty with Spain," giving list of acquisitions, 79. 45 — Cessions of Territory to other powers than United States. . . 80 4(3_Cousent of governed not required under international law. . 83 47 — The United States has never asked the consent of the in- habitants of ceded territory 84 48 — Impracticability of ascertaining consent 86 49 — Special instances in which obtaining consent might be prac- ticable 87 50 — Kastrictions on acquisitions of territory by European powers under " balance of power " theory 87 51 — Acquisitions of Uuited States never objected to by other powers 88 52 — Acquisitions of European powers prevented by United States under Monroe Doctrine 89 Note on Monroe Doctrine: Extracts from President Monroe's Messages, 90. The Monroe Doctrine, 95. The Announcement, 97. The Holy Alliance, 98. The Panama Congress, 102. Other Congresses, 103. Relations with Cuba, 104. Mexican inter- vention, 105. Venezuela boundary dispute, 107. Recent acquisitions, 110. Opinions of publicists and references, 111. 53 — Russia's colonization on Pacific coast stopped 94 54 — England, Central and South America, and the Monroe Doc- trine 97 55 — Spain, Cuba, and the Monroe Doctrine 104 56 — Louis Napoleon, Mexico, and the Monroe Doctrine 110 57 — Germany and Samoa 113 58 — Monroe Doctrine and the Peace Conference at The Hague; 1899 1 14 Extract from F. W. Holls' " Peace Conference " 115 59 — Opposition to territorial expansion from within, and not from without 116 60 — Right to acquire territory based on nationality and sover- eignty 117 61 — Power to govern acquired territory; The Insular cases, 1901. 117 61a^Status of new possessions 118 616— Porto Rico and the Dingley Act 119 61c — The status of the Philippines; the Diamond Ring case 122 61(Z — The status of the Hawaiian Islands 122 61e— The Foraker Act 123 61/— Duties paid in Porto Rico 124 61gr — The Porto Rico Pilotage case 126 61h — Summary of decisions in Insular cases 126 62— The Morman Church case; Justice Bradley's opinion 128 63 — Subsequent cases involving same point 129 XU TABLE OF CONTENTS. Section page 64 — Constitutional limitations, or limitations by fundamental principles 129 65 — Justice Harlan's opinion 130 6(i — General summary of views 130 67 — Government of territories as affected by treaties of cession. . 131 68 — Special clauses in treaty with Spain of 1898 131 69 — States' Rights and anti-expansion 132 70 — Policy of expansion and acquisition sustained by courts and people 134 71 — Territorial expansion the Cornerstone of American pros- perity 135 CHAPTER III. the nationality and sovereignty of the united states as recog- nized by other sovereign powers. pages 137-190. Section 72 — Subject, so far, viewed from internal standpoints 138 73 — Subject now to be viewed from external standpoints 138 74 — Same distinctions exist as to all federated powers 138 75 — Recent Insular cases decisions only involve these questions, from internal standpoints 139 76 — Rule from external standpoints based on international law. . 139 77 — Undivided sovereignty of governments exercising jurisdic- tion recognized by other powers 140 78 — Central government of federations the only one recognized by foreign powers 140 79 — Responsibilities as well as benefits result from this rule 141 80 — Author's views briefly expressed 141 81 — Instances in which the question has arisen 142 82 — The case of the " Caroline ; " Great Britain's po.sition 142 83 — McLeod's connection with the " Caroline " ; his arrest by New York State 143 84 — Great Britain's position expressed by Mr. Fox 145 85 — Mr. Webster's reply 146 86 — Final disposition of the case; McLeod's acquittal 148 87 — Federal statutes passed to meet similar cases 148 88 — Anti-Spanish riots in New Orleans of 1851 149 89 — Mr. Webster's position 151 90 — Indemnity ultimately paid to sufferers 153 91— The Mafia riots in New Orleans of 1891 1.53 92 — Complications arising from the Mafia riots 154 93 — Action of the State courts of Louisiana 154 94 — Mr. Blaine's position 156 95 — Final result of the Mafia cases 157 96 — The '■^ Montijo^' case; claims by the United States against other confederations; federal responsibility for acts of State IGO 97 — Result of the arbitration 161 TABLE OF CONTENTS. Xlll Sbotion page 98 — Decision of the Umpire 161 99 — Moore's History of Interuational Arbitration 163 100 — Importance of the " Munlijo " decision on the position of the United States 165 101 — Different meanings of the term " United States" when con- sidered from external and internal standpoints again re- ferred to 166 102 — Official definition of the word " country " 166 103 — Status of territory conquered by military forces of the Uni- ted States 167 104 — Fleming \s. Paye ; The Tampico Duly case; Chief Justice Taney's opinion 168 105 — The position reversed; The Cdstine case; War of 1812; Jus- tice Story's opinion 171 106— Status of Cuba 173 The Teller Resolution, 173. Stipulations as to Cuba in Spanish treaty, 174. The Foraker amendment, 175. Executive Orders, 175. Decision in Neely vs. Henkel, 175. The Piatt Amendment, 175. 107 — Status of Cuba involved in the Neely case ; extradition. . . . 174 Opinion in full in note, 178. 108 — Uncertainty as to status of Cuba from internal standpoint, . . 179 109 — National unity as to all foreign powers, a principle enun- ciated by the Congress of the Confederation and continued until the present time 189 PART II. HISTORICAL REVIEW OF THE TREATY-MAKING POWER OF THE UNITED STATES. CHAPTER IV. the treaty-making power as an attribute of sovereignty and as exercised by central governments of confederated pow- ers, pages 191 — 234. Section 110 — Ancient origin of treaties 191 111 — Treaty-making always vested in highest powers: Professor Woolsey's views 192 112 — Views of Professor Lawrence 194 113 — Views of Henry Wheaton 195 114 — In confederations the treaty-making power is in the central government 196 Extracts from Lawrence, 197. Phillimore, 199. Gardner's Institutes, 199. 115— Views of Professor Hall 198 116 — Views of Professor Pomeroy 200 XIV TABLE OF CONTENTS. Skction page 117 — Constitutional limitations on treaty-making 201 Extract from Gleuu, 202. 118 — Commencement of modern period of international law 203 119 — Disregard of colonies in treaties made by European powers as to American affairs 203 Note on treaties affecting America, and extracts therefrom, 204. 120 — Treaty-making power of Great Britain vested in the Crown. 205 Extract from Auson on the Crown, 207. 121 — Colonies have no treaty-making power except through the Crown 208 122 — Status of Dominion of Canada as to treaty-making power. 211 123 — Concrete example of above principles 213 Note on Anglo-American Joint High Commission of 1898, 213. 124 — Actual practice to appoint Commissioners from locality af- fected 215 125 — Territorial origin of States of the Union 215 126 — No State or Territory ever possessed treaty-making power except Texas and Hawaii 217 127 — That of Texas and Hawaii ceased on their becoming part of the United States 218 128 — Treaty-making power of Germany 220 Extracts from Burgess, 220. 129 — Treaty-making power of South American countries 221 130 — Other instances of treaty -making power 223 Note on treaty-making power of several countries: Belguim, 223. Germany, 224. .Japan, 225. Mex- ico, 225. Honduras, 226. Venezuela, 226. Ar- gentine Republic, 227. The Confederate States, 229. 131 — Treaty-making power as an attribute of sovereignty evi- denced in cases of cession of territory 228 132 — General application of principles 232 133 — Power only to be exercised by governments possessing com- plete sovereignty 232 Extracts from Lawrence, 233. Phillimore, 234. CHAPTER V. TREATIES, AND THE TREATY-MAKIXG POWER OF THE UNITED STATES AS EXERCISED PRIOR TO AND UNDER THE CONFEDERATION. PAGES 235- 284. Section 134 — Treaty making and sovereignty as to colonies by central gov- ernments 236 135_Colonies as the subject of treaties between European powers. 236 136 — Nature of allegiancs of American colonies to mother coun- try 237 TABLE OF CONTENTS. XV Section page 137 — Birth of United States; Declaration of Independence 238 Extract from Burgess, 239; from Curtis, 240. 138 — Chishulin vs. Georgia ; views of Cliief Justice Jay 242 139 — Extent of sovereignty in the Continental Congress 242 140 — States' Rights School contention 243 141 — Broader views of M;irshall and others 244 142 — Views of Calhoun and Tucker 244 143 — Views of Calhoun and Tucker refuted by Justice Story and others 246 Story's views, 246. Curtis' views, 247. Cooley's views, 248. Story, 251. 144— Views of Justice Miller and Mr. Davis 251 145 — The Continental Congress, a revolutionary government 253 146 — Nature of Congress prior to Constitution 253 147 — Independence, preservation of States' Rights, National unity — all united in original and subsequent governments, of United S tates 254 Note on National unity prior to Declaration of Inde- pendence, 254. The Association of 1774, 255; The Declaration of 1775, 255. 148 — Adoption of Articles of Confederation 257 149 — National unity and State independence 257 Professor Von Hoist's views, 258. 150 — Treaty-making power assumed by Congress as an attribute of sovereignty : 259 151 — Treaties with France made with States by name 261 152 — Principles established by treaties with Fi'ance 261 153 — Advantages derived by all States under treaties with France. 262 Extract from Rives' Life of Madison, 264. 154 — Treaties with France concluded prior to final ratification of Ai'ticles of Confederation 265 155 — Great extent of treaty-making power of Congress fully ap- preciated by States 266 156 — Other treaties made by Congress 266 Extracts from Secretary John Jay's report on treat- ies and State laws violating same, 268. 157 — Names of States recited in preambles of treaties 268 158 — Treaty of peace with Great Britain 275 159 — Special provisions of Article V 277 160 — Other treaties made by Congress under Confederation again referred to 278 Note on freedom of private property on the seas, 279. 161 — Other sovereign and national powers exercised by earlier Congresses 281 162— Views of Justice Story 282 Extract from John W. Foster on treaties of the Confederation 2S3. XVI TABLE OF CONTENTS. Section page CHAPTER VI. proceedings of the constitutional convention of 1787 relating to treaties and the trea i'y-m akino power of the federal government. pages 285-338. Section 163— Critical period of Araerican history 286 164 — Retrograde from unity 286 Note on violations by States of treaty stipulations, 287. 165— Inability of Central Government to enforce its decrees 288 166 — Dangers appreciated by Washington and others 290 167 — Unity impossible witliout greater power in Central Gov- ernment 290 Extract from Curtis, 291. 168 — Constitutional Convention and its results 292 Leading members of Convention, 292. 169 — Convention a unit in lodging treaty-making power in Cen- tral Government 294 Note on authorities on Federal and State Conven- tions, 294. Elliot's Debates, 295. The Journals of Congress, 295. The Madison Papers, 296. Mad- ison's Journal, 296. Yates, 296. Bancroft, Curtis, McMaster, Fiske, Meigs and others, 297. 170 — Organization of Convention; Washington chosen President. . 297 Extract from John W. Foster on Benjamin Frank- lin as a diplomat, 298. 171 — Opening business of Convention, May 25th; Randolph's res- olutions, May 29th 300 172— Pinckney's plan; treaties to be made by Senate; May 29th. . 301 173 — Pinckney's plan to negative State laws; Madison's views; June 8th 303 174— Consideration of treaty-making power; June 13th 305 175 — Mr. Paterson's "New Jersey" plan submitted; June 14th and loth 305 176 — Power to make and enforce treaties a practical matter in 1787 307 177 — Work of Convention continued ; Alexander Hamilton's views, June 18th; Mr. Madison's views, June 19th 308 178 — Mr. Paterson's views contrasted with those of Mr. Madison and Mr. Hamilton 310 179 — Mr. King's views on sovereignty of States 312 180 — Dangerous differences in Convention on other subjects; com- promises reached 313 181 — Luther Martin's motion in regard to treaties; July 17th 313 182 — Mr. James Wilson's views on treaties 314 183 —Committee of Detail; resolutions as to treaties; July26th.. 314 184 — First draft submitted; treaties to be supreme law; August 6th 315 185 — Discussion of draft; Colonel Mason's views; August 15th. . 316 TABLE OF CONTENTS. XVU Section page 18(3 — Treaties the supreme law; resolutions regarding same; Auj^ust 23d 318 187— Debate as to ratification of Treaties; A ugust 23d 319 188— Amendments to draft as to treaties ; August 25tli 321 189 — Jurisdiction of Supreme Court over treaty cases; Senate to ratify treaties; September 4th-10cli 321 190— Committee to make final draft; President to make treaties ; September 10th and 12th 326 Extract from ('urtis, :J28. 191 — Letter to Congress, accompanying Constitution as to rati- fication by the people, instead of by legislatures, of the States 329 192 — Constitution adopted, September 15th 330 193— Constitution signed; Conventiim adjourned; September 17th. 331 194 — What the records of the Convention demonstrate 331 l!)j— Ratification of the Constitution by the people; Madison's views 332 Extract from Hare's American Constitutional Law, 335. Extract from Curtis, 336. 196 — Results of the Convention; Washington's meditation 337 "A rising or a setting sun?" Franklin's doubts dispelled; his prophecy fulfilled, 338. CHAPTER VII. pkoceedings of the constitutional conventions of the several states, in so far as they relate to the treaty-making power of the national government. pages 339-370. Section 197 — Constitution to be ratified by States .340 198 — Delaware the first State to ratify .341 199 — Convention meets in Pennsylvania; prominent members. . . 341 200 — Views of minority opposing ratification 341 201 — Subsequent protest of minority to force the adoption of amendments 342 202 — Ratification by New Jersey 343 203 — Georgia and Connecticut ratify; conditions in other States. . 343 204 — Massachusetts Convention meets; members composing it. . . 344 205 — Position of Samuel Adams; Constitution ratified 345 206 — Ratification by Maryland ; Luther Martin's protest 346 207 — The Constitution in South Carolina; Mr. Pinckney's views. . 347 208 — Rawlin Lowndes's opposition: Mr. Pringle's views 349 209 — Other views expressed on treaty-making power 352 210 — Constitution ratified by South Carolina 352 211 — Constitutional convention meets in Virginia 353 212 — Opposition led by Patrick Henry 353 Extract from Curtis on Patrick Henry, 354. 213 — Governor Randolph's position 355 214 — Opposing forces in Virginia convention 355 B XVlll TABLE OF CONTENTS. Section page 215 — Mr. Madison's views 356 216 — Mr. Henry agaiu expresses his views 357 217 — Mr. Madison's reply to Mr. Henry 358 218 — Treaty- making power as it afifected Virginia; the navigation of the Mississippi 358 219 — Patrick Henry on the prerogatives of the King of Great Bri- tain ; other views 360 220 — Views of Mr. Corbin on necessity of treaty-making powers in Central Government 361 221 — Patrick Henry's views as to effect of treaties on States 361 222 — Mr. Madison's support of Constitutional provisions as to treaties ; final debate 362 22.3 — Constitution finally ratified by Virginia; amendments sug- gested 363 224 — Ratification by New Hampshire; action of Rhode Island; Convention in New York 364 225 — Personnel of New York Convention 365 226 — Treaty-making power referred to 365 227 — North Carolina rejects the Constitution; Judge Iredell's views on treaty-making 366 228 — Views of other delegates 367 229 — Mr. Davie's views, continued 368 230 — Resolutions of North Carolina as to position of that State on Constitution, and relations to other States 368 231 — Ratification by eleven States makes Constitution effective. . 370 CHAPTER VIII. the tbeaty-making power as a factor in the great national debate of 1787-8. pages 371-392. Section 232— Grandeur of the Constitution as a subject for study 372 233 — Difficulty of selecting extracts from prominent writers 372 234 — Constitutional literature divided into two classes 372 235— Pre-ratificati on literature a large element in procuring adop- tion of the Constitution : 373 List of pseiido names from Ford's Essays and Pamphlets, 373. 236— This chapter devoted to pre-ratification literature 374 237 — The Federalist; its appearance and its effect 374 Note on the Federalist. 1. Editions, 374, 2. An English view, 375. 3. A French view, 377. 238— Treaty-making power referred to in the Federalist and in other publications 378 239 — The Federalist, No. XXII; reference to treaties 378 240 — The Federalist, No. XXIII; the treaty-making power should have no constitutional shackles 379 241 — The Federalist, No. XXXIX; duality of the Central Govern- ment 380 242 — The Federalist, No. XLII; treaties with foreign nations. . . . 380 TABLE OF CONTENTS. XIX Section page 243 — The Federalist, No. XLV; enlargement of congressional powers 380 244 — The Federalist, No. LXIV; importance of the treaty-making power 381 245 — The Federalist, No. LXIV; same subject continued 381 24G — The Federalist, No. LXIX; the treaty-making power of the United St;ites compared willi that of Great Britain 383 247 — The Federalist, No. LXXV; advantages of the United States plan; treaties as contracts 384 248 — The Federalist, No. LXXX; treaty-making power of Na- tional Government necessary for peace of the Union 385 249— Authorship of the Federalist. . . .' 386 2o0 — Other publications prior to ratification 387 251 — Richard Henry Lee's opposition; the "Federal Farmer".. 387 252 — Geoi-jre Mason's protest 389 2.53 — Judge Iredell's answer; " Marcus" 389 254 — David Ramsay's letters; " Civis " 390 255 — Public knowledge as to the treaty-making power and its ef- fects 391 25(5 — Importance of treaty-making power appreciated by the people, and by the delegates to State conventions 392 CHAPTER IX. opinions of publicists, histohians axd expouxders of the consti- tution in regard to the extent and scope of the treaty-mak- ing power of the united states. pages 393-416. Section 257 — Pre-ratification literature necessarily academic 393 258 — Different status of post-ratification literature 394 259— Treaty-making power furnishes many questions for discus- sion 394 260 — Opinions of liublicists — not judicial decisions — discussed in this chapter : 395 261— Views of William Rawle; 1825 395 262 — Mr. Rawle's acquaintance with members of Constitutional Convention 397 263— Views of William A. Duer ; 1833 398 264 — George Ticknor Curtis' Constitutional History of the United States 400 265— Jose pli Story, the Commentator of the Constitution 404 266 — Story's views on Article YI of the Constitution 405 267— Judge Cooley's " Constitutional Limitations; " 1874 407 268 — Professor Pomeroy's views 408 269 — Professor Pomeroy's broad views in regard to the Executive and foreign relations 409 270 — Professor Pomeroy on State statutes and treaty stipulations. 410 271 — Views of Story, Iredell and Pomeroy identical as to State statutes and treaty stipulations 411 XX TABLE OF CONTENTS. Section page 272— Chancellor Kent's opinion 412 27o — Numerous other opinions in support of broadest powers. . . . 413 274 — Narrower views of some authorities on the Constitution. . . . 413 275 — John Randolph Tucker's viewss 413 276 — John C. Calliouu's views 414 277 — Improper use of treaty stipulations as to urging State legis- lation '. 415 278 — This chapter confined to extent of treaty-making power. . . . 416 CHAPTER X. the treaty-making power and the relations of both houses of congress thereto, as the same has been the sub.ject of congressional debate and action. 417-458. Section 279 — First Congress under Constitution meets; earliest tariff stat- utes 418 280 — Power of United States to protect manufactures discussed . . 418 Extract from Thompson's History of the Tariffs. 419. 281 — Department of Foreign Affairs established; State Depart- ment 420 282— No treaties negotiated until 1794 420 283 — Jay's treaty; excitement and opposition 421 284 — Strained relations between United States and Great Britian; AYashington's message 421 285 — Rights of the people; necessity of legislation to enforce the treaty 422 286 — General discussion of these questions 423 287 — John Jay's mission to England; negotiation of treaty 423 288 — Ratification of treaty with amendment 424 289 — Popular excitement; French and English parties 424 290 — Meeting of Congress; Message of the President 424 291 — Request of House of Representatives for papers relating to treaty 425 292 — President Washington's reply to the House 426 293 — Eft'ect of Washington's reply; action by the House 427 294 — Other treaties ratified by the Senate, and before the House. . 428 295 — Fisher Ames's address and argument; treaty legislation en- acted 429 296 — Position of House of Representatives in treaty matters de- fined 429 297— Practical results of this method 430 298 — Good faith in this respect always shown by Congress 431 299 —Subsequent debates in Congress on same subject 432 300— After commercial treaty of 1815 with Great Britian 432 301 — Views of Mr. King of Massachusetts 433 302 — Presentation of other side by Mr. Hardin 434 303 — Result of conference ; extract from report 436 TABLE OF CONTENTS. XXI Section page 304 — President Jackson's views in 1834 in regard to French treaty of 1831 437 305 — Question again raised regarding Alaska purchase in 1867. . 438 306 — Position of House on Ahiska i)urclmse; the Senate makes concessions 439 307 — Question raised in 1887 on Hawaiian reciprocity treaty; Mr. Tucker's report 439 308 — Treaty of Paris witli Spain, 1898; what legislation necessary. 441 309 — Opinions of puhlicists on this suhject 444 Note — Extracts from Wluirton's Digest. Kent. 445. Duer. 445. Calhoun. 446. Wheaton. 446. A Ger- man view. 447. 310 — Supreme Court decisions on this subject 448 311 — General conclusions; power of Congress to frustrate and abrogate treaties 448 312 — Moral and ethical questions arising 449 313 — Alexander Hamilton's views in Federalist not followed by Supreme Court 449 314 — Position of Supreme Court as to treaty violations; burden thrown on Congress 451 315 — Difference between municipal and international law in this respect 451 316 — Treaty with Denmark considered in this respect; tariff leg- islation 452 317 — Chinese exclusion; conflict of statutes and treaties; opinion of Justice Field 454 318 — This same subject treated at length in a subsequent chapter. 456 INSULAR CASES APPENDIX. Synopsis of cases and decisions and analysis of cases cited in buiefs, arguments and opinions 459-585 Consult special index on pages 461-464. TABLE OF CONTENTS OF VOLUME II. PART III. JUDICIAL DECISIONS AFFECTING THE TREATY-MAKING POWER OF THE UNITED STATES, ITS EXTENT AND APPLICATION. CHAPTER XI. PAGES OF VOL. II Judicial decisions in regard to the relative effect of treaty stipula- tions and State laws 1-62 CHAPTER XII. Decisions of Federal courts in regard to the relative effect of treaty stipulations and Congressional action 63-148 xxii TABLE OF CONTENTS. CHAPTER XIII. PAGES OF VOL. II Treaties of cession involving change of sovereignty over tlic ceded territory and the etlect thereof on hiws, persons and property . 149-194 CHAPTER XIV. The treaty-making power of the United States as it has been exer- cised with Indian tribes CHAPTER XV. Certain specific instances in which treaty-making power has been exercised by United States 237-348 CHAPTER XVI. Limitations on the treaty-making power of the United States. . 349-404 TREATIES APPENDIX. CONTAIKING A LIST OF TKEATIES, CONVENTIONS, AGREEMENTS AND PKOTOCOLS WITH, AND PROCLAMATIONS AFFECTING FOREIGN COUNTRIES, ARRANGED ALPHABETICALLY ACCORDING TO COUN- TRIES 405-532 Consult special index thereto 405-409 INDEX. Analytical index to volumes I and II arranged according TO SUBJECTS and NAMES WITH REFERENCES TO PAGES . . 533 tO end TABLE OF AUTHORITIES REFERRED TO. In preparing this list of authorities the author has not intended to simply preface his work with a bibliography of the various subjects discussed in the volume; had he intended to do so the following list would have been very incomplete as it simply includes most of the books from which quotations have been made in the text, or which have been consulted, and relied upon, by the author. This list, of course, does not include any official reports or digests of Federal or State courts, opin- ions of the Attorney-General, or publications contaiuiug the statutes of Federal and State legislative bodies. In specifying editions the author has not intended to express any preference for those particularly referred to, but simply to indicate that such edition was used by him because it was the most accessible; in all cases, however, he has endeavored to use the latest editit)n of standard works. Almost all of the books referred to can be found in the library of The Association of the Bar of New York City. Biogra- phies are classed under the name of the subject, other books with few excejitions under the name of the author; subjects and authors are in- dexed in detail in the general index to the volume. The description of the book is as a general rule the title page of the first volume. Only a few of the Government publications consulted are referred to in this list. H. C. ADAMS; Public Debts. Public Debts; An Essay in the Science of Finance, by Henry C. Adams, Ph. D., of the University of Michigan, and Cornell University New York, D. Appleton & Co., 1890. LIFE OF SAMUEL ADAMS; James K. Hosmer. American Statesmen Series. Samuel Adams, by James K. Hosmer, Professor in Washington University, St. Louis, Missouri. 7th edition. Boston and New York, Houghton, Mifflin & Co., The Kiverside Press, Cambridge, 1888. SHELDON AMOS; Fifty Years of the English Constitution. Fifty Years of the English Constitution, 1830-1880, by Sheldon Amos, M. A., Barrister-at-Law, late Professor of Jurisprudence in University College, London; and of Jurisprudence and Constitutional Law and Legal History to the Inns Courts; Late Examiner in the Constitutional History of England to the University of London; author of " A Primer of the English Constitution," " A Systematic View of the Science of Jurisprudence," etc. Boston, Little, Brown & Co., 1880. (xxiii) XXIV TABLE OF AUTHORITIES. SIK WILLIAM R. ANSOX; Anson's Law of the Constitution; Pakt II, Thk Crown. The Law and Custom of the Constitution, Part II, The Crown, by Sir William R. Auson, Bart., D. C. L., of the Inner Temple, Barrister-at- Law, Warden of All Soul's College, Oxford. Second edition, Oxford, at the Clarendon Press, London, Henry Frowde and Stevens & Sons, Limited, 1896. WALTER BAGEHOT; Fobest Morgan's Edition of Bagehot's Works. The Works of Walter Bagehot, M. A., and Fellow of University Col- lege of London, with memoirs by R. H. Hutton, now first published in full by The Traveller's Insurance Company of Hartford, Conn., edited by Forest Morgan, in 5 volumes, Hartford, 1891. SIR SHERSTON BAKER; Halleck's International Law. Halleck's International Law, or Rules Regulating the Intercourse of States in Peace and War. Third edition thoroughly revised and in many parts rewritten. By Sir Sherstou Baker, Bart., of Lincoln's Inn, and of the Western Circuit, Barrister-at-Law ; author of "The Laws Relating to Quarantine," "The Office of the Vice-Admiral," etc., 2 vol- umes, London, Kegan, Paul, Trench, Trubner & Co., Limited, 1893. GEORGE BANCROFT; History of the United States. History of the United States of America, from the Discovery of the Continent, by George Bancroft. The author's last revision. In six volumes. New York, D. Appleton & Co. 1892. GEORGE BANCROFT; History of the Constitution. History of the Formation of the Constitution of the United States of America, by George Bancroft. In two volumes. Sixth edition. New York, D. Appleton & Co., 189.3. THOMAS H. BENTON ; Thirty Years in the United States Senate, Thirty Years' Views, or a History of the Working of the American Government for Thirty Years, from 1820 to 1850. Chiefly taken from the Congress Debates, the private papers of General Jackson and the speeches of ex-Senator Benton, with his actual view of men and affairs; with historical notes and illustrations, and some notices of eminent de- ceased contemporaries, by a Senator of Thirty Years. In two volumes. Vol. I. New York and London, D. Appleton & Company, 1854. (Vol. II. New York, D, Appleton & Company; Cincinnati, W, A, Clarke & Co,, 1856.) SIR WILLI A.M BLACKSTONE; see Chase and Tucker. JAMES G. BLAINE; Twenty Years of Congress, 1861-1881. Twenty Years of Congress, from Lincoln to Garfield. With a review of the events which led to the political revolution of 1860, by James G. TABLE OF AUTHORITIES. XXV Blaine. In two volumes; volume I, Norwich, Conn., The Henry Bill Publishing Company, 1884. (Vol. II, 1886.) PHILEMON BLISS; Bliss on Sovereignty. Of Sovereignty. By Philemon Bliss, LL.D., Professor of Law in the State University of Missouri; author of "Bliss on Code Pleading." Boston, Little, Brown & Company, 1885. J. K. BLUNTSCHLI; The Theory of the State. The Theory of the State, by J. K. Bluntschli, late Professor of Po- litical Sciences in the University of Heidelberg. Authorized Euglibh translation from the sixth German edition. Oxford, at the Clarendon Press, 1885. GEORGE S. BOUT WELL; The Constitution of the United States AT the End of the Fikst Century. The Constitution of the United States at the End of the First Cen- tury, by George S. Boutwell. Boston, U. S. A., D. C. Heath & Co., 1895. A. C. BOYD; Wheaton's International Law. Elements of International Law, by Henry Wheaton, LL.D., Minister of the United States at the Court of Prussia; Corresponding Member of the Academy of Moral and Political Sciences in the Institute of France; Honorary Member of the Royal Academy of Sciences at Ber- lin, etc. Third English edition, edited with Notes, and an Appendix of Statutes and Treaties, bringing the work down to the present time. By A. B. Boyd, Esq., LL.B. (Camb.), J. P., Barrister-at-Law of the In- ner Temple and Midland Circuit, author of " The Merchant Shipping Laws." London, Stevens and Sons, Limited, 1889. JAMES BRTCE; The American Commonwealth. The American Commonwealth, by James Bryce, author of " The Holy Roman Empire," M. P. for Aberdeen. In two volumes. London, Mac- millanand Co., and New York, 1889. JOHNW. BURGESS; Political Science and Constitutional Law. Political Science and Comparative Constitutional Law; volume 1, Sovereignty and Liberty; volume 2, Government. By John W. Bur- gess, Ph.D., LL.D., Professor of History, Political Science and Interna- tional Law, Dean of the University Faculty of Political Science in Columbia College. Boston, U. S. A., and London, Ginn & Company, 1891. JOHN L. CADWALADER; Digest of Opinions and Leading Cases ON International Law. Digest of the published Opinions of the Attorneys-General, and of the Leading Decisions of the Federal Courts, with reference to Inter- XXVI TABLE OF AUTHOlUTIES. national Law, Treaties, and Kindred Subjects. By John L. Cadwalader, "Wushiuglou, Government Printing Office, 1877. JOHN C. CALHOUN; Works of; see R. C. Cralle, Editor. JAMES MORTON CALLAHAN; Cuba axd International Rela- tions. An Historical Study in American Diplomacy, by James Morton Cal- lahan, Ph. I). Albert Shaw, Lecturer in Diplomatic History, Johns Hopkins University. Tlie Johns Hopkins Press, Baltimore, 1899. HAMPTON L. CARSON; lOOrn Anniversary of the Constitution of the United States. History of the Celebration of the One Hundredth Anniversary of the promulgation of the Constitution of the United States, edited by Hamp- ton L. Carson, Secretary of the Constitutional Centennial Commission. In two volumes, with illustrations. Published under the direction and by the authority of the Commission, by J. B. Lippincott Company, Philadelphia, 1889. HAMPTON L. CARSON; History of the Supreme Court of the United States. The Supreme Court of the United States: Its History by Hampton L. Carson of the Philadelphia Bar, and Its Centennial Celebration, Febru- ary 4, 1890. Prepared under direction of The Judiciary Centennial Committee. Philadelphia, John Y. Huber Company, 1891. GEORGE CHASE; Blackstone's Commentaries. Commentaries on The Laws of England; In Four Bonks, by Sir William Blackstone, Knight, one of the Justices of the Court of Com- mon Pleas. So abridged as to retain all portions of the original work which are of historical or practical value. With notes, and references to American decisions; for the use of American students. By George Chase, LL. B., Professor of Law in the Law School of Columbia Col- lege, N. Y. Editor of Stephen's Digest of the Law of Evidence (Ameri- can edition). Third edition. New York and Albany, Banks and Broth- ers, 1890. SIR EDWARD CLARKE; Clarke's Law of Extradition. A Treatise upon the Law of Extradition. With the Conventions upon the Subject existing between England and Foreign Nations, and the Cases decided therein. By Sir Edward Clarke, Knt., Her Majesty's Solicitor General; formerly Tancred Student of Lincoln's Inn. Third edition. London, Stevens and Haynes, 1888. LIFE OF HENRY CLAY; Carl Schurz. American Statesmen Series. Life of Henry Clay, by Carl Schurz, in two volumes. Boston and New York, Houghton, Mifflin & Co., The Riverside Press, Cambridge, 1888. TABLE OF AUTHORITIES. XXVU CLAYTON-BULWER TREATY. Correspondence in relation to the Proposed lateroceanic Canal be- tween tlie Atlantic and Pacific Oceans, The Clayton-Bulwer Treaty and the Monroe Doctrine; being a reprint of Senate Executive Documents No. 112, 4(5th Congress, 2d Session; No. 194, 47th Congress, 1st Session; and No. 2(5, 48tli Congress, 1st Session. Washington, Government Printing Office, 1885. THOMAS M. COOLEY; Cooley's Constitutional Limitations. A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union. By Thomas M. Cooley, LL. D., formerly one of the Justices of the Supreme Court of Michigan, and Jay Professor of Law in the University of Michigan; now Chairman of the Intei'state Commerce Commission. Sixth edi- tion, with large additions, giving the results of the recent cases, by Alexis C. Angell, of the Detroit Bar. Boston, Little, Brown ife Com- pany, 1890. THOMAS M. COOLEY; Principles of Constitutional Law. Student's Series. The General Principles of Constitutional Law in the United States of America, by Thomas M. Cooley, LL. D., author of "Constitutional Limitations," etc. Third edition by Andrew C. McLaughlin, A. M., LL. B., Professor of American History, University of Michigan. Boston, Little, Brown & Company, 1898. HOMERSHAM COX; The Institutions of the English Govern- ment. The Institutions of the English Government: being an account of The Constitution, Powers, and Procedure, of its Legislative, Judicial, and Administrative Departments. With copious references to ancient and modern authorities. By Homersham Cox, M. A., Barrister-at-Law. author of " The British Commonwealth," etc. London, H. Sweet, 1863. BRINTON COXE; Judicial Power and Unconstitutional Legis- lation. An Essay on Judicial Power and Unconstitutional Legislation, being a Commentary on Parts of the Constitution of the United States, by Brinton Coxe, of the Bar of Philadelphia; Kay and Brother, Philadel- phia, 1893. RICHARD K. CRALLE; Works op John C. Calhoun. A Disquisition on Government and a Discourse on the Constitution and Government of the United States, by John C. Calhoun. In six vol- umes. Edited by Richard K. Cralle. New York, D. Appleton & Com- pany, 1888. SIR EDWARD CREASY; The Constitutions of the Britannic Empire. The Imperial and Colonial Constitutions of the Britannic Empire in- XXVm TABLE OF AUTHORITIES. eluding Indian Institutions, by Sir Edward Creasy, M. A., author of " The Rise and Progress of tlio English Constitution," " The History of England," etc. Loudon, Lougmans, Green and Co., 1872. SIR EDWARD CREASY; History of the English Constitution. The Rise and Progress of the English Constitution by Sir Edward Creasy, M. A., late Chief Justice of Ceylon, author of " The Fifteen Decisive Battles of the World," etc. Fourteenth edition. London: Ricliard Beutly & Son, Publishers in Ordinary to Her Majesty the Queen, 1880. GEORGE TICKNOR CURTIS; Constitutional History of the United States. Constitutional History of The United States from their Declaration of Independence to the close of their Civil Wai-, by George Ticknor Curtis. In two volumes, New York, Harper & Brothers, 1889. (Vol. 11 edited by Joseph Culbertson Clayton, 1896.) R. H. DANA, Jr.; Wheaton's International Law. Elements of International Law. By Henry Wheaton, LL. D., Min- ister of the United States at the Court of Prussia; Corresponding Member of the Academy of Moral and Political Sciences in the Insti- tute of France; Honorary Member of the Royal Academy of Science at Berlin, etc. Eighth edition. Edited, with notes, by Richard Henry Dana, Jr., LL. D. Boston, Little, Brown & Company, 1866. J. C. BANCROFT DAVIS; see Samuel F. Milleb. HENRY B. DAWSON; The Federalist. The Foederalist; a Collection of Essays, written in favor of the new Constitution, as agreed upon by the Federal Convention, September 17, 1787. Reprinted from the original text, under the editorial supervision of Henry B. Dawson. University edition New York, Charles Scrib- ner & Company, 1870. A. V. DICEY; Dicey on The Constitution. Introduction to the study of The Law of the Constitution, by A. V. Dicey, B. C. L., of tlie Inner Temple: Vinerian Professor of English Law, Fellow of All Soul's College, Oxford, Hon. LL. D., Glasgow and Edinburgh. Fourth edition. London and New York, Macmillan & Co., 1893. WILLIAM ALEXANDER DUER; Dueb's Constitutional Jueis- prudence. A Course of Lectures on the Constitutional Jurisprudence of the United States; delivered annually in Columbia College, New York, by William Alexander Duer, LL. D., Late President of that Institution, The second edition, revised, enlarged and adapted to professional, as well as general, use. Boston, Little, Brown & Company, 1856. TABLE OF AUTHORITIES. XXIX JONATHAN ELLIOTT; Elliott's Debates. The Debates in the several State Conventions, on the adoption of the Federal Constitution, as recommended by the General Convention at Philadelphia, in 1787, together with the Journal of the Federal Con- vention, Luther Martin's Letter, Yate's Minutes, Congressional Opinions, Virginia and Kentucky Resolutions of '98-'99, and other illustrations of the Constitution. In five volumes, second edition, vyitli considerable additions. Collected and Revised from Contemporary Publications, by Jonathan Elliot. Published under the sanction of Congress. Phila- delphia, J. B. Lippincott & Co., Washington, Taylor & Maury, 1866. JONATHAN ELLIOT; Elliot's Debates on the Federal Consti- tution; Supplement — The Madison Papers. Debates on the Adoption of the Federal Constitution, in the Conven- tion held at Philadelphia, in 1787; with a Diary of the Debates of The Congress of the Confederation; as reported by James Madison a Mem- ber and Deputy from Viiginia. Revised and newly arranged by Jona- than Elliott. Complete in one volume. Vol. V. Supplementary to Elliot's Debates. Published under the sanction of Congress. Phila- delphia, J, B. Lippincott & Co., Washington, Taylor & Maury, 1866. THE FEDERALIST; see Dawson, J. C. Hamilton and Lodge. JOHN FISKE ; The Critical Period of American History. The Critical Period of American History, 1783-1789, by John Fiske. Boston and New York, Houghton, Mifflin & Company, The Riverside Press, Cambridge, 1899. PAUL LEICESTER FORD; Essays on the Constitution, 1787-8. Essays on the Constitution of the United States, published during its discussion by the people, 1787-1788. Edited by Paul Leicester Ford. Brooklyn, N. Y., Historical Printing Club, 1892. PAUL LEICESTER FORD; Pamphlets on the Constitution, 1787-8. Pamphlets on the Constitution of the United States, published during its discussion by the people, 1787-1788. Edited with notes and a bib- liography, by Paul Leicester Ford. Brooklyn, N. Y. 1888. JOHN W. FOSTER; A Century of American Diplomacy. A Century of American Diplomacy, being a brief review of the For- eign Relations of the United States, 1776-1876, by John W. Foster, Bos- ton and New York, Houghton, Mifflin & Company, Riverside Press, Cambridge, 1901. EDWARD A. FREEMAN; Growth of the English Constitution. The Growtli of the English Constitution from the earliest times by Edward A. Freeman, M. A., Hon. D. C. L., Late Fellow of Trinity Col- lege, Oxford. London, Macmillan & Co., 1872. XXX TABLE OF AUTHORITIES. DANIEL GARDNER; Gardxkr's Institutes, American Inter- national Law. Institutes of luteniational Law, Public and Private, as settled by the Supreme Court of the United States, and by uur Republic. With refer- ences to Judicial Decisions. By Daniel Gardner, Esq., Counsellor at Law, of the New York Bar. New York, John S. Voorhies, 18G0. JAMES W. GERARD; The Peace of Utrecht. The Peace of Utrecht. An Historical Review of the Great Treaty of 1713-14, and of the Principal Events of the War of the Spanish Succes- sion. By James W. Gerard. New York and London, G. P. Putnam's Sons, The Knickerbocker Press, 1885. EDWIN F. GLENN; Glenn's International Law. Hand Book of International Law by Captain Edwin F. Glenn, Acting Judge Advocate United States Army. St. Paul, Minn., West Publishing Co., 1895. RUDOLPH GNEIST; Gneist's History of the English Constitu- tion. The History of the English Constitution by Dr. Rudolph Gneist, Pro- fessor of Law at the University of Berlin. Translated by Phillip A. Ashworth, of the Inner Temple, Esq., Barrister-at-law. Second edi- tion revised and enlarged. In two volumes. London, William Clowes and Sons, Limited, 1889. WILLIAM D. GUTHRIE; The Fourteenth Amendment to the Constitution of the United States : Lectures on the Fourteenth Article of Amendment to the Constitu- tion of the United States delivered before the Dwight Alumni Associa- tion, New York, April-May, 1898. By William D. Guthrie, of the New York Bar. Boston, Little, Brown & Company, 1898. WILLIAM EDAVARD HALL; Hall's International Law. A Treatise on International Law by William Edward Hall, M. A. Fourth edition. Oxford, at the Clarendon Press, London, Henry Fi-owde, Oxford, University Press Warehouse, Amen Corner and Stev- ens & Sons, Limited, 1895. WILLIAM EDWARD HALL; Hall's Foreign Jurisdiction of the British Crown. A Treatise on the Foreign Powers and Jurisdiction of the British Crown by William Edward Hall, M. A., Barrister-at-law. Oxford at the Clarendon Press, London: Henry Frowde and Stevens & Sous, Lim- ited, 1894. HALLECK; see Sir Sherston Baker. ALEXANDER HAMILTON; see Dawson, J. C. Hamilton and Lodge, Editors of Federalist. TABLE OF AUTHORITIES. XXXI JOHN C. HAMILTON; The Federalist. The Federalist. A Commentary on the Constitution of the United States. A collection of essays by Alexander Hamilton, Jay and Madi- son. Also the Continentalist and other papers, by Hamilton. Edited by John C. Hamilton, Author of the History of the Republic of the United States. Philadelphia, J. B. Lippincott Company, 1888. SAMUEL BANNISTER HARDING; Tue Federal Constitution IN Massachusetts. Harvai-d Historical Studies, II. The Contest over the Ratification of the Federal Constitution in the State of Massachusetts, by Samuel Ban- nister Harding, A. M. ; sometime Morgan Fellow in Harvard University; Assistant Professor of History in Indiana University. New York, Lon- don and Bombay, Longmans, Green and Co., 1896. JOHN H. HASWELL; see Treaties of United States. BINGER HERMANN; The Louisiana Purchase. The Louisiana Purchase and Our Title West of the Rocky Mountains, with a Review of Annexation by the United States, by Binger Hermann, Commissioner of the General Laud Office. Washington, Government Printing Office, 1898. WILLIAM HICKEY; The Constitution of the United States. Hickey's Constitution of the United States of America, with an alpha- betical analysis; Proceedings of the Contintental Congress; Non-Im- portation Agreement; Address to the Crown and People of Great Brit- tain; The Declaration of Independence, etc., etc., by William Hickey. New and enlarged edition. Revised and brought down to the 4th of March, 1877, by Alexander Cunimings, Counsellor at Law. Baltimore, John Murphy & Co. , for the benefit of the heirs of William Hickey, 1878. FREDERICK W. HOLLS; The Peace Conference at The Hague. The Peace Conference at The Hague and its Bearings on International Law and Policy by Frederick W. Holls, D. C, L., a member of the Conference of the United States of America. New York, The Macmil- lan Company; London, Macmillan & Co., Ltd., 1900. DAVID FRANKLIN HOUSTON; A Study of Nullification in South Carolina. Harvard Historical Studies, III. A Critical Study of Nullification in South Carolina by David Franklin Houston, A. M., Adjunct Professor of Political Science in the University of Texas; sometime Morgan Fel- low of Harvard University. Longmans, Green and Co., New York, London and Bombay, 1896. JOHN C. HURD; The Theory of our National Existence. The Theory of our National Existence, as shown by the action of the Government of the United States since 1861. John C. Hard, LL. D., XXxii TABLE OF AUTHORITIES. author of " The Law of Freedom and Bondage in the United States." Boston, Little, Brown & Company, 1881. E. P. HURLBUT; Essays on Human Rights. Essays on Human Rights and their Political Guaranties, by E. P. Hurl- but, Counsellor at Law in the City of New York, with notes by George Combe. Sixth thousandth. New York, Fowlers and Wells, 1850. INDIAN LAWS; United States Indian Laws. Laws of the United States relating to Indian Affairs, compiled from the Revised Statutes of the United States enacted June 22, 1874, and from Statutes at Large from that date to March 4, 1893; also, Special Acts and Resohitious previous to the enactment of the Revised Statutes, not embraced in or repealed by the Revision; also, List of all Ratified Treaties and Agreements made with the several Indian Tribes. Third Edition. Compiled by the Indian Bureau. Washington, Government Printing Office, 1884. INDIAN TREATIES; Revision of Indian Treaties, 1873. A Compilation of all the Treaties between the United States and the Indian Tribes now in force as Laws. Prepared under the provisions of the act of Congress, approved March 3, 1873, entitled "An Act to pro- vide for the preparation and presentation to Congress of the Revision of the laws of the United States, consolidating the Laws relating to the Postroads, and a Code relating to Military Offenses, and the Revision of Treaties with the Indian Tribes now in force." Washington, Govern- ment Printing Office, 1873. F. J. KIRCHNER; L'Extradition. L'Extradition; Recueil Renfermant in extenso tous les Traites con- clus jusqu'an ler Janvier, 1883. entre les Nations Civilisees, et donnant la solution precise des difficultes qui peuvent surgir dans leur applica- tion; avec une preface de M. Georges Lachaud, avocat a la Cour D'ap- pel des Paris; Publie sous les Auspices de M. C. E. Howard Vincent, Directeur des Affaires Criniinelles de la Police Metropolitaine de Lon- dres; membre de la Faculte de Droit et de la Societe Generale des Prisons de Paris; avec le Concours Beinveillant du Corps Diplomatique, par F. J. Kirchner, attache a la Direction des Affaires Criminelles. London; Stevens and Sons, Chancery Lane, 1883. LINDLEY MILLER KEASBEY; The Nicaragua Canal and the Monroe Doctrine. A Political History of Isthmus Transit, with special reference to the Nicaragua Canal Project and the Attitude of the United States Govern- ment thereto, by Lindley Miller Keasbey, Ph. D., R. P. D., Associate Professor of Political Science, Bryn Mawr College. G. P. Putnam's Sons, New York and London, 1896. TABLE OF AUTHORITIES. XXXIU JUDSON S. LANDON; The Constitutional History and Govern- ment OF THE United States. The Constitutional Plistory and Government of the United States by Judson S. Landon, LL. D., Revised edition. Boston and Nev? York, Houghton, Miflfliu & Company, The Riverside Press, Cambridge, 1900. T. J. LAWRENCE; The Principles op International Law. The principles of International Lav? by T. J. Lawrence, M. A., LL. D., Rector of Girton, and Lecturer in Downing College, Cambridge, England: Associate of the Institute of International Law, etc. Boston, U. S. A. D. C. Heath & Co., 1895. WILLIAM LAWRENCE; Law of Claims against Governments. The Law of Claims against Governments including the mode of ad- justing them and the Procedure adopted in their investigation. Cred- ited to Hon. William Lawrence, Comptroller of the Treasury. Pub- lished by order of the Congress of the United States of America, Wash- ington Government Printing Office, 1875. WILLIAM BEACH LAWRENCE; Lawrence's Wheaton on Intek- national Law. Elements of International Law. By Henry Wheaton, LL. D., Minister of the United States at the Court of Prussia; Corresponding Member of the Academy of Moral and Political Sciences in the Institute of Fiance, Honorary Member of the Royal Academy of Sciences at Berlin, etc., Sec- ond annotated edition by William Beach Lawrence, author of "Visita- tion and Search," etc. Boston, Little, Brown & Company; London, Sampson Low, Son and Company, 1863. HENRY CABOT LODGE; The Federalist. The Federalist, A Commentary on The Constitution of the United States, being a Collection of Essays written in support of the Constitu- tion agreed upon September 17, 1787, by The Federal Convention. Re- printed from the original text of Alexander Hamilton, John Jay, and James Madison. Edited by Henry Cabot Lodge, Author of " Life and Letters of George Cabot," "A short History of the English Colonies in America," "Alexander Hamilton," and "Daniel Webster" (in "Amer- ican Statesmen" Series), and "Studies in History." New I'ork and London, G. P. Putnam's Sons, 1894. JOHN BACH McMASTER; A History of the People of the Uni- ted States. A History of the People of the United States, from the Revolution to the Civil War. By John Bac.li McM:ister. In five volumes. Volume I, New York, D, Appleton and Company, 1893. Other volumes issued sub- seqently. JOHN BACH McMASTER; Monroe Doctrine. The Origin, Meaning and Application of the Monroe Doctrine by Pro- fessor John Bach McMaster and Henry Altemus. Philadelphia, 1896. XXXIV TABLE OF AUTHORITIES. McM ASTER AND STONE; Pennsylvania and the Federal Con- stitution, 1787-1788. Pennsylvania and the Federal Constitution 1787-1788. Edited by Jolm Bach McMaster and Frederick D. Stuue. Published for the sub' scribers by The Historical Society of Pennsylvania, 1888. WILLIAM MACDONALD; Select Charters Illustrative op American History, 1606-1775. Select Charters and Other Documents illustrative of American His- tory 1606-1775. Edited with notes by William Macdonald, Professor of History and Political Science in Bowdoin College. Editor of " Select Documents Illustrative of the History of the United States, 1776-1861.'' New York, The Macmilhm Company, 1899. JAMES MADISON; Madison Papers. The Papers of James Madison, Purchased by Order of Congress, be- ing his CorresjJondence and Reports of Debates during the Congress of the Confederation and his Report of Debates in the Federal Convention; now published from the original manuscripts, deposited in the Depart- ment of State, by direction of the Joint Library Committee of Congress under the superintendence of Henry D. Gilpin. Washington, Langtree & O'SuUivan, 1840. (In three volumes.) CHARLES E. MAGOON; Congressional Document. Senate Document, No. 234, LVI Congress; first session; Report on legal status of the territory and inhabitants of the islands acquired by the United States during the war with Spain, considered with reference to territorial boundaries, the Constitution and laws of the United States, by Charles E. Magoon, Law Office, Division of Insular Affairs, War De- partment, submitted to Secretary of War Elihu Root, February 12, 1900, presented to the Senate by Cushman K. Davis, chairman of the Com- mtttee on Foreign Relations, March 20, 1900. SIR HENRY SUMNER MAINE; Popular Government. Popular Government, Four Essays, by Sir Henry Sumner Maine, K. C. S. L, LL. D., F. R. S. Foreign Associate of the Institute of France, author of " Ancient Law." London, John Murray, 1885. JOHN MARSHALL; On the Federal Constitution. The Writings of John Mnrshall late Chief Justice of the United States upon The Federal Constitution. Boston, James Munroe & Company, 1839. WILLIAM M. MEIGS; The Growth of the Constitution. The Growth of the Constitution in the Federal Convention of 1787. An effort to trace the origin and development of eacli separate clause from its suggestion in that body to the form finally approved, contain- ing also a fac-simile of a heretofore unpublished manuscript of the first draft of the instrument made for use in the committee of detail, by TABLE OF AUTHORITIES. XXXV William M. Meigs, author of "The Life of Charles Jared IngersoU." Second edition. Philadelphia and London, J. B. Lippincott Com- pany, 1900. SAMUEL FREEMAN MILLER; Miller's Lectures on the United States Constitution. Lectures on the Constitution of The United States by Samuel Free- man Miller, LL. D., late an Associate Justice of the Supreme Court of the United States. New York and Albany, Banks and Brothers, 1891. With notes by J. C. Bancroft Davis and Gheradi Davis. LIFE OF JAMES MONROE; Daniel C. Gilman. American Statesman Series. James Monroe in his relations to the Public Service during half a Century, 1776-1826, by Daniel C. Gilman, President of the Johns Hopkins University, Baltimore. Ninth edition. Boston and New York, Houghton, Mififlin & Co., Riverside Press, 1888. JOHN BASSETT MOORE; International Arbitrations. History and Digest of the International Arbitrations to which the United States has been a Party, together with Appendices containing the Treaties relating to such Arbitrations, and Historical and Legal Notes on other Internatiojial Arbitrations Ancient and Modern, and on the Domestic Commissions of the United States for the Adjustment of International Claims. By John Bassett Moore, Hamilton Fish Professor of International Law and Diplomacy, Columbia University, New York; Associate of the Institute of International Law; sometime Assistant Secretary of State of the United States; author of a work on Extradi- tion and Interstate Rendition, of American notes on the Conflict of Laws, etc. In six volumes. Washington, Government Printing Office, 1898. JOHN BASSETT MOORE; Moore on Extradition; Extradition AND Interstate Rendition. A Treatise on Extradition and Interstate Rendition. With Appen- dices containing the Treaties and Statutes relating to Extradition; the Treaties relating to the Desertion of Seamen; and the Statutes, Rules of Practice, and Forms, in force in the several States and Territories, relating to Interstate Rendition. By John Bassett Moore, Third Assis- tant Secretary of State of the United States; Author of a work on "Extra Territorial Crime," of a report on Extradition to the Interna- tional American Conference, etc. In two volumes. Boston, The Bos- ton Book Company, 1891. JOSEPH WEST MOORE; The American Congress. The American Congress. A History of National Legislation and Political Events, 1774-1895, by Joseph West Moore, New York, Harper & Brothers, 1895. XXXVi TABLE OF AUTHORITIES. JOHN G. NICOLAY AND JOHN HAY; Abraham Lincoln. A HisrouY. Abrahnm Lincoln, a History. Tea volumes. By John G. Nicolay and John Hay. New York Century Co., 1890. SIR ROBERT PHILLIMOKE; Tjiillimore's International Law. Commentaries upon InteruaLional Law. By the Late Sir Robert Phillimore, Bart., D. C. L., Member of Her Majesty's Most Honourable Privy Council, Membre Correspondent de L'Institut de France, and some- time Judge of the High Court of Admiralty. In four volumes. Third edition. Butterwortlis, London; Hodges, Foster & Co., Dublin; vol- ume I, 1879; volume II, 1882, volume III, 1885. SIR ROBERT PHILLIMORE; Phillimore's International Law. Commentaries upon International Law. Private International Law or Comity, by the Late Sir Robert Phillimore, Bart., D. C. L. Member of Her Majesty's Most Honourable Privy Council, and Judge of the High Court of Admiralty. In four volumes. Vol. IV. Tliird edition. Edi- ted by the author's son, Sir Walter G. F. Phillimore, Bart., D. C. L., of All Souls College, Oxford, and the Middle Temple, Barrister-at-Law; and Reginald James Mure, M. A., of Ch. Ch. Oxford, and Lincoln's Inn, Barrister-at-Law. Butter worths, London; Hodges, Figgis & Co., Dub- lin, 1889. JOHN NORTON POMEROY; Pomeroy's Coxstitutional Law. An Introduction to the Constitutional Law of the United States. Especially designed for Students, General and Professional, by John Norton Pomeroy, LL. D. Author of " Lectures on International Law in the Time of Peace." Ninth edition. Revised and enlarged, by Edmund H. Benaett, LL. D. Dean of the Boston University Law School. Boston and New York, Houghton, Mifflin and Company, The Riverside Press, Cambridge, 1886. JOHN NORTON POMEROY; International Law. Lectures on International Law in Time of Peace. By John Norton Pomeroy, author of " An Introduction to the Constitutional Law of the L'nited States," "An Introduction to Municipal Law," etc. Edited by Theodore Salisbury Woolsey, Professor of International Law in the Yale Law School. Boston and New York, Houghton, Mifflin & Company, The Riverside Pi'ess, Cambridge, 1886. CARMAN F. RANDOLPH; Law and Policy of Annexation. The Law and Policy of Annexation, with special reference to the Philippines, together with observations on the status of Cuba. By Carman F. Randolph of the New York Bar, author of " The Law of Eminent Domain." Longmans, Green and Co., 91 and 93 Fifth Avenue, New York; London and Bombay, 1901. MATTHEW G. REYNOLDS; Spanish and Mexican Land Laws. Spanish and Mexican Land Laws; New Spain and Mexico by Matthew TABLE OF AUTHORITIES. XXXVII G. Reynolds, United States Attorney for tlie Court of Private Land Claims. (Containing also Kules of Court of Private Land Claims.) St. Louis, Mo., 1895. RHODES; History of the United States. History of the United States from the Compromise of 1850, by James Ford Rhodes. Four volumes. New York, Har^jer Brothers, 1893. WILLIAM C. RIVES; Life and Times of James Madison. History of the Life and Times of James Madison, by William C. Rives. Two volumes. Boston, Little, Brown & Co., 1859. ALPHONSE RIVIER: Principes du Droit des Gens. Principes du Droit des Gens par Alphonse Rivier, Consul General de la Confederation Suisse. Professeur a L'Universite de Boutelles, Pro- fesseiir Honoraire a L'Universite de Lausanne. Duex tomes. Paris Litrairie Nouvelle de Droit et de Jurisprudence. Arthur Rousseau, Editeur, 1896. THEODORE ROOSEVELT; The Winning of the West. The Winning of the West, by Theodore Roosevelt, author of " Naval War of 1812," "Life of Thomas Hart Benton," "Life of Governor Morris," " Hunting Trijis of a Ranchman," " Ranch Life and the Hunt- ing Trail," "Essays on Practical Politics," etc. Four volumes. Vol- umes I and 11, 1881', From the Alleganies to the Mississippi; volume III, 1894, The Founding of the Trans-Alleghany Commonwealth; vol- ume IV, 1896, Louisiana and the Northwest. C. P. Putnam's Sons, New York and London. SAMUEL T. SPEAR; Spear on the Law of Extradition. The Law of Extradition, International and Interstate with an Ap- pendix, containing the Extradition Treaties and Laws of the United States, the Extradition Laws of the States, several sections of the Eng- lish Extradition Act of 1870, and the Opinion of Governor CuUom. By Samuel T. Spear, author of " The Law of the Federal Judiciary; " " The Constitutionality of the Legal Tender Acts," etc. Second edition. Albany, Weed, Parsons & Co., 1884. JOSEPH STORY; Commentaries on the Constitution. Commentaries on the Constitution of the United States; with a Pre- liminary Review of the Constitutional History of the Colonies and States before the adoption of the Constitution. By Joesph Story, L.L. D. In two volumes. Fifth edition by Melville M. Bigelow, Ph. D. Boston, Little, Brown & Co., 1891. HANNIS TAYLOR; The Origin and Growth of the English Con- stitution. The Origin and Growth of the English Constitution. An Historical Treatise in which is ^rawn out, by the light of the most recent re- XXXVm TABLE OF AUTHORITIES. searches, the gradual development of the English Constitutional sys- tem, and the growth out of that system of the Federal Republic of the United States. By Hannis Taylor. In two parts. Part I. The Mak- ing of the Constitution. Part II. Boston and New York, Houghton, Mifflin & Company; Loudon, Sampson, Low, Marston, Searle & Kiving- ston; The Riverside Press, Cambridge, 1889. R. W. THOMPSON; Histoky of the Tariff. The History of Protective Tariff Laws by R. W. Thompson, Ex-Sec- cretary of the U. S. Navy. Third edition. Chicago, R. S. Peale & Co., 1888, C. G. TIEDEMAN; The Unwkitten Constitutiox of the United States. The Unwritten Constitution of the United States, a Philosophical Inquiry into the Fundamentals of American Constitutional Law, by Christopher G. Tiedeman, A. M., LL. B., Professor of Law in the Uni- versity of Missouri, author of treatises on "The Limitation of Police Power," "The Law of Real Property," and " Law of Commercial Pa- per." C. P. Putnam's Sons, New York and London, 1890. ALPHEUS TODD; Parliamentary Government in the British Colonies. Parliamentary Government in the British Colonies. By Alpheus Todd, Librariau of Parliament, Canada; author of " Parliamentary Gov- ernment in England," etc. Boston, Little, Brown & Company. 1880. TREATIES; Treaties and Conventions Between United States AND Other Powers. 1TT6-1887. Treaties and Conventions concluded between the United States of America and other Powers, since July 4, 1776, complied by John H. Haswell, containing notes, with References to negotiations preceding the several treaties, to the executive, legislative,' or judicial construc- tion of tJiem, and to the causes of the abrogation of some of them; a chronological list of treaties; and an analytical index. "Washington, Government Printing Office, 1889. TREATIES IN FORCE, 1899— Bryan. Compilation of Treaties in Force. Prepared under Act of July 7, 1898, by Henry L. Bryan. Washington, Government Printing Office, 1899. See also Indian Treaties. GEORGE F. TUCKER; The Monroe Doctrine. The Monroe Doctrine. A Concise History of its Origin and Growth, by George F. Tucker, of the Boston Bar (author of " Manual of Wills"). Boston, George B. Reed, 1885. JOHN RANDOLPH TUCKER; The Constitution of the United States. The Constitution of the United States; A Central Discussion of its TABLE OF AUTHORITIES. XXXIX Genesis, Development, and Interpretation, by John Randolph Tucker, LL. D., Late Professor of Constitutional and International Law and Equity, Washington and Lee University. Edited by lion. St. George Tucker, Professor of Constitutional and International Law and Equity in Washington and Lee University. Four volumes. Chicago, Callaghan & Co., 1899. ST. GEORGE TUCKER; Tucker's Blackstone. Blackstone's Commentaries with notes of Reference to the Constitu- tion and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia. In five volumes. With an appendix to each volume, constituting short tracts upon such subjects as ap- peared necessary to form a connected view of the laws of Virginia, as a member of the Federal Union. By St. George Tucker, Professor of Law in the University of William and Mary, and one of the Judges of the General Court in Virginia. Philadelphia, William Young Birch, and Abraham Small, 1803. DR. H. VON HOLST; Constitutioxal History of the United States, 1750-1861. The Constitutional and Political History of the United States, by Dr. H. Von Hoist, Professor of the University of Freiburg. Translated from the German by John J. Lalor and Alfred B. Mason. 1750-1833. State Sovereignty and Slavery. Chicago, Callaghan and Company, 1876. DR. H. VON. HOLST; Constitutional Law of the United States. The Constitutional Law of the United States of America, by Dr. H. Von Hoist, Privy Councilor and Professor in the University of Freiburg. Authorized edition. Translated by Alfred Bishop Mason. Chicago, Callaghan & Co., 1887. THOMAS ALFRED WALKER; A History of The Law of Nations. A History of the Law of Nations by Thomas Alfred Walker, M. A., LL. D., Fellow and Tutor of and Lecturer in History in Peterhouse, Cambridge. Vol. I. From the Earliest Times to the Peace of West- phalia, 1648. Cambridge, at The University Press, 1899. ROBERT WARD; Ward's Law of Nations. An Inquiry into the Foundation and History of the Law of Nations in Europe, from the time of the Greeks and Romans, to the Age of Gro- tius. By Robert Ward, of the Inner Temple, Esq., Barrister-at-Law. In two volumes. Vol. II. London. A. Strahan and W. Woodfall, 1795. DANIEL WEBSTER; The Works of Daniel Webster, In six volumes. Twentieth edition. Boston, Little, Brown & Co., 1890. First volume contains Biographical Memoir of the Public Life of Daniel Webster, by Edward Everett. FRANCIS WHARTON; International Law Digest. A Digest of The International Law of the United States, taken from Xl TABLE OF AUTHORITIES. Documents issued by Presidents and Secretaries of State, and from Decisions of Federal Courts and Opinions of Attorneys-General. Edited by Francis Wharton, LL. D., author of a treatise on Coutlict of Laws, and of Commentaries on American Law. In three volumes (second edition). Washington, Government Printing Office, 1887. HENRY WHEATOlSr; Whe axon's International Law. See Boyd, Dana and Lawkence. HEISTRY WHEATOX; History of the Law of Nations. History of the Law of Nations in Europe and America; from tlie earliest times to the Treaty of Washington, 1842. By Henry Wheaton, LL. D., Minister of the United States at the Court of Berlin, Corre- sponding Member of the Academy of Moral and Political Sciences in the Institute of France. New York, Gould, Banks & Co., Wm. & A. Gould & Co., Albany; and Andrew Milliken, Dublin, Ireland, 1845. HENRY WILSON; Rise and Fall of the Slave Power in America. History of the Rise and Fall of the Slave Power in America, by Henry Wilson, in three volumes. Ninth edition. Boston and New York, Houghton, Mifflin & Company, The Riverside Press, Cambridge. THEODORE DWIGHT WOOLSEY; International Law. Introduction to the study of International Law designed as an aid in teaching and in historical studies by Theodore Dwight Woolsey. Sixth edition, revised and enlarged by Theodore Salisbury Woolsey. New York, Charles Scribner's Sons, 1891. THEODORE SALISBURY WOOLSEY; America's Foreign Policy. America's Foreign Policy; Essays and Addresses by Theodore Salis- bury Woolsey, M. A., Professor of International Law in the Law School of Yale University. New York, The Century Co., 1898. HEZEKIAH BUTTERWORTH. South America, a Political History of the Struggle for Liberty in the American Republics and Cuba, by Hezekiah Butterworth, author of Over the Andes, Zizzag Journeys. New York, Doubleday & McClure Co., 1898. JAMES MORTON CALLAHAN. Agreement of 1817. Reduction of naval forces upon the lakes. By James Morton Callahan, Ph. D., sometime Assistant and Fellow in His- tory, Johns Hopkins University. Series XVI of Johns Hopkins Uni- vei'sity Studies in historical and political science, 1898. CONSTITUTIONAL MANUAL. The Conventional Manual of the Sixth New York State Constitutional Convention, 1894. Foreign Constitutions, comprising The Constitutions of Argentine, Belgium, Brazil (Empire and Republic), Colombia, Ecua- dor, France, Germany, Honduras, Japan, Mexico, Prussia, Switzerland TABLE OF AUTHOIIITIES. xH and Venezuela. Prepared in pnrsuauce of chapter 8, of Laws of 1893, and chapter 228 of Laws of 189-1. Under the direction of John Pa-lmer, Secretary of State, James A. Roberts, Comptroller, Theo. E. Hancock, Attornoy-Greneral. By George A. Glynn, Syracuse, Compiler. Part 2, vol. 3, Albany, The Argus Company, Printers. 1894, PAUL LEICESTER FORD; The Federalist. The Federalist, a Commentary on the Constitution of the United States, by Alexander Hamilton, James Madison, and John Jay. Edited, with notes, illustrative documents, and a copious index by Paul Leicester Ford, Editor of Pamphlets and Essay on the Constitution. New York, Henry Holl and Co., 1898. ALBERT BUSHNELL HART; The Foundations of American FoKEiGN Policy. With a Woiking Bibliography. By Albert Bushnell Hart, Professor of History in Harvard University. The Macmillan Companj^ 1901. JOSEPH ROGERS HEROD; Favored Nation Treatment. An Analysis of the Most Favored Nation Clause, with Commentaries on its uses in Treaties of Commerce and Navigation, by Joseph Rogers Herod, M. A., formerly Secretary of Legation and Charge d' Affaires of the United States to Japan. Banks Law Publishing Co., New York, 1901. JOHN H. LATANE. The Albert Shaw Lectures on Diplomatic History, 1899. The dip- lomatic relations of the United States and Spanish America, by John H. Latane, Ph. D., Professor of History in Randolph-Macon Woman's Col- lege. Baltimore, The Johns Hopkins Press, 1900. WILLIAM II. MICHAELS. History of the Department of State of the United States. Its forma- tion and duties, together with biographies of its present officers and secretaries from the beginning. Washington, Government Printing Office, 1901. E. PARMALEE PRENTICE AND JOHN G. EGAN. The commerce clause of the Federal Constitution, by E. Parmalee Prentice and John G. Egan of Chicago. Chicago, Callaghan and Com- pany, 1898. FRANCIS NEWTON THORPE. The constitutional history of the United States. By Francis Newton Thorpe. In three volumes, 1765-1895. Chicago, Callaghan & Com- pany, 1901. SIDNEY WEBSTER; Two Treaties of Paris. Two Treaties of Paris and the Supreme Court, by Sidney Webster. New York and London, Harper & Bros., 1901. TABLE OF CASES. Page Abbngnnto, New Orleans vs. See New Orleans vs. Abbag- nato. Ableniau vs. Booth. U. S. Sup. Ct. 1858; 21 How. 506, Taney, Ch. J., Vol. I, 535, 542 Abra La. See La Abra. Adams vs. Akerlund. Sup. Ct. Ills. 1897; 1(58 Ills. Rep. 632, McGbuder, J., Vol. II., 38 Adams vs. Baucrot't. U. S. Cir. Ct. 1838, Mass; 3 Sum- ner, 384, Stoky, J., Vol. I., 547 Adams vs. United States. See Brig William, The. Addison vs. New Orleans Sav- ings Bank. Sup. Ct. Louis'a 1840; 15 La. Ann. O. S. 527, Vol. II, 54 Adriance vs. Lagrave. K Y. Ct. of App. 1874; 59 N. Y. 110, Chukch, Ch. J.; N. Y. Sup. Ct. Gen'l Term 1874, 1 Him, 689, Daniels, J., Vol. II, 271, 273 Adventure and Cargo, The. U. S. Cir. Ct. Va. 1812; 1 Brock. 235, Marshall, Ch. J., Vol. I, 548 Ah Chong, In re. U. S. Cir. Ct. Cal. 1880; 6 Sawyer, 451, Sawyer, J., Vol. II, 28 Ah Fawn, United States vs. See United States vs. Ah Faion. Ah Fong, In re. U. S. Cir. Ct. Cal. 1874; 3 Sawyer, 144, Field, J., Vol. II, 28 Ah Kee, la re. U. S. Dist. Ct. S. D. N. Y. 1884; 22 Blatcliford, 520, Brown, J., Vol. II, 116 Ah Lung, In re. U. S. Cir. Ct. Cal. 1883; 18 Fed. Rep. 28; 9 Sawyer, 306, Field, J., Vol. II, 93, 116 Ah Ping, In re. U. S. Cir. Ct. Cal. 1885; 23 Fed. Rep. 329, Sawyer, J., Vol. II, 101, 116 Page Ah Quan, In re. U. S. Cir. Ct. Cal. 1884; 10 Sawyer, 222, Sawy'ek, J., Vol.11, 116 Ah Yup, In re. U. S. Cir. Ct. Cal. 1878; 5 Sawyer, 155, Vol. II, 111 Akerlund, Adams vs. See Adams vs. Akerlund. Alabama Claims Cases. See Badiman vs. Lawson ; Great Western Ins. Co. vs. United States ; Phelps vs. McDonald. Alameda vs. Neal. U. S. Cir. Ct. Cal. 1887; 32 Fed. Rep. 331, Field, J., Vol. I, 548 Alaska Church Case. See Call- sen vs. Hope. Alaska Packers^ Assn., United States vs. See United States vs. Alaska Packers'' Assn. Alaska Slavery Case. See Sah Quah\eal, Alter's. See Alter's Appeal. Appeal, Lockers. See Locke''s Appeal. Appeal, PalaireVs. See Palu- ireVs Appeal. Arizona, Marsh vs. See Marsh vs. Arizona. Arkansas, Beers vs. State of. See Beers vs. State of Arkan- sas. 474 359 471 550 556 169 226 547 008 555 552 558 361 544 550 371 535 329 Page Arkansas, State of, Wilburn vs. See Wilburn vs. State &c. (2 cases). Armas, New Orleans vs. See Neio Orleans vs. Armas. Armstrong- vs. United States (Insular case). U. S. Sup. Ct. 19U1; 182 U. S. 243, Brown, J., Vol. I, 119, 124, 127, 461, 469, 496, 502 Arnold vs. United States. U. S. Sup.Ct. 1815; 9 Cranch. 104, Story, J., Vol. I, 571 Arredondo, United States vs. See United States vs. Ar- redondo. Asher vs. Texas. U. S. Sup. Ct. 1888; 128 U. S. 129, Brad- ley, J., Vol. I, 546, 547, 548 Assif/nee {Fi.'83; 114 U. S. 3.-)5, Bradley. .!.. Vol. II, 329, 331 Bell vs. All. & Pac. R. R.. Co. U. S. Cir. Ct. App. Sth Cir. 1894; 27 U, S. App. 305, Caldwell, J., Vol. il, 222 Bell, Lewis vs. See Lewis vs. Bell. Bell, Hopkirk vs. See Hop- kirk vs. Bell. Bello Corrunes, The. U. S. Sup. Ct. 1821; 6 Wheaton, 152, Johnson, J., Vol. II, 336 Page Bell's Gap R. R. Co. vs. Penn- sylvania. U. S. Sup. Ct. 1889; 134 U. S. 232, Brad- ley, J., Vol. II, 34, 213 Benner vs. Porter. U. S. Sup. Ct. 1850; 9 Howard, 235, Nelson, J., Vol. I, 539 Bennett, Oakey vs. See Oakey vs. liennett. Benson, Li re. See Benson vs. McMahon. Benson vs. McMahon. U. S. Sup. Ct. 1888; 127 U. S. 457, Miller, J.; affirming. In re Benson. U. S. Cir. Ct. S. D. N. Y. 1888; 34 Fed. Rep. 649, Lacombe, Vol. II, 98, 105, 262 Bering Sea Cases. See In re Cooper ; La Ninfa. Berry, United States vs. See United States vs. Berry. Best vs. Polk. U. S. Sup. Ct. 1873; 18 Wallace 112, Da- vis, J., Vol. II, 217 Betsey, Glc(ss vs. The Sloop. See Glass vs. The Sloop Bet- sey. Betsey, The Ship. See Ship Betsey, The. Bidwell, Cruikshank vs. See Cruikshank vs. Bidwell. Bidivell De Lima vs. See Be Lima vs. Bidwell. Bidwell, Downes vs. See Downes vs. Bidwell. Bidwell, Lascelles vs. See Las- celles vs. Bidwell. Bi.'ihop of Natal, Lord. See Lord Bishop of Natal. Bize, Bahuaudxs. See Bahuaud vs. Bize. Black vs. Jackson. U. S. Sup. Ct. 1899; 177 U. S. 349, Har- lan, J., Vol. I, 539 Blacker, McPherson vs. See McPherson vs. Blacker. Blackfeather, United States vs. United States vs. Black- feather. Blackledge, Ogden vs. See Og- deii vs. Blackledge. Blacksmith vs. Fellows. N. Y. Ct. of App. 18.52; 7 N. Y. 401, Edmonds, J., Vol. II, 207, 212 Blacksmith, Fellows vs. See Fellows vs. Blacksmith. Blar/ge vs. United States. See Brig William, The. Blaine, United States ex rel. TABLE OF CASES. xlvii Pacre aee Bol- See Boynton vs. See United States ex rel. Boijntou vs. Blaine. Blake, Bollernuin vs. lerinan vs. Blake. Blake, Lochburouyh vs. Lochborow/h vs. Blake. Blaiidford vs. State. Ct. of App. Texas, 1«81; 10 Tex. Ct. App. Crira. Cas. 627, Hurt, J., Vol. II, 79, 271, Blaakard vs. Galdy. King & Queen's Bench, 5 Wm. & Mary, 4 Mod. 222, Feb Cu- riam, Vol. I, 550, Vol. II, Blight vs. Rochester. U. S. Sup. Ct. 1822; 7 Wheaton, 535, Marshall, Ch. J., Vol. II, 15, Board of Health, (Louisiana), Compagnie Francaise vs. See Co^npannie Franraiae vs. State Board of Health. Board of Health (Louisiana), Morgan S. S. Co. vs. See Morgan S. S. Co. vs. Louisi- ana Board of Health. Board of Port Wardens, Cooler/ vs. See Cooley vs. Board of Port Wardens. Bodley vs. Ferguson. Sup. ct. Cala. 18(36; oO (Jala. 511, SlIAFTEB, J., Vol. II, Bollerinann vs. Blake. N. Y. Ct. of App. 188;]; 94 N. Y. 624, Earl, J., Vol. II, Booth, Ableman vs. See Able- man vs. Booth. Borden, Luther ys. Seo Luther vs. Borden. Borgnieyer vs. Idler. U. S. Sup. Ct. 1895; 159 U. S. 408, Fuller, Ch. J., Vol. II, Boston, City of, Norrls vs. Norris vs. City of Boston. Botiller vs. Boiningiioz. S. Sup. Ct. 1889, 130 U, 238, Miller, J., Vol. II, 182, Bruffy, Williams vs. See Wil- liams vs. Bruffy. Bourne, Merrymnn vs. See Merryman vs. Bourne. Bowlby, Shively vs. See Shively vs. Bowlby. Boyd vs. Nebraska ex rel. Thayer. U. S. Sup. Ct. 1892; 143 U. S. 135, Fuller, Ch. J., Vol. I, 537, 552, 555, 556, 273 553 166 179 See U. s. 296 181 185 539 558 Page Vol. II, 45, 168 Boyd vs. United States. U. S. Sup. Cr. 1886; 116 U. S. 616, Bradley, J., Vol. I, 540, 555 Boyd, United States vs. See United States vs. Boyd. Boyle, Thirty Hogsheads of Sugar vs. See Thirty Hogs- heads, etc., vs. Boyle. Boynton, United States ex rel. vs. Blaine. See United States ex rel. Boynton vs. Blaine. Braden, Clark vs. See Clark vs. Braden. Bradjord, HeardYS. See Heard vs. Bradford. Brailsjord, State o} Georgia vs. See State of Georgia vs. Brailsford. Brame, Insurance Co. vs. See Insurance Co. vs. Brame. Brandy, 43 Gallons of. See Forty-three Gallons of Brandy. Breen, In re. U. S. Cir. Ct. S. D. N. Y. 1896; 73 Fed. Kep. 458, Lacombe, J., Vol. II, 262 Brennan vs. Titusville. U. S. Sup. Ct. 1894; 1.^3 U. S. 289, Bkewek, J., Vol. I, 546 Brewster, State of Vermont vs. See State of Vermont vs. Brewster. Bridge, The Clinton. See The Clinton Bridge. Bridge Co., Pennsylvania vs. Wheeling. See Pennsylvania vs. Wheeling Bridge Co. Bridleman, United States vs. See United States vs. Bridle- man. BrlgVenns, The. U. S. Ct. of Claims, 1892; 27 Ct. of Clms. 116, NoTT, J., Vol. II, 284 Brig William, The. IT. S. Ct. of Claims, 1888; 23 Ct. of Clms. 201, ScoFiELD, J,, Vol. II, 284 Briggs vs. Sample. U. S. Cir. Ct. Kansas, 1890; 43 Fed. Rep. 102, Foster, J., Vol. II, 223 Brimson, Interstate Commerce Commission vs. See Inter- state Commerce Commission vs. Brimson. Briscoe vs. Bank of Kentucky. U. S. Sup. Ct. 1837; 11 Peters 257, McLean, J., Vol. I, 190, 535 546, 549 British Prisoners, The. U. S. Cir. Ct. Mass. 1845; 1 Wood- bury & Minot, 66, Wood- xlviii TABLE OF CASES. Pactq BURY, J., Vol. II, 63, 79, 258, 259 Brock, Hutchinson vs. See Hutchinson vs. Brock. Brocklin Van, State of Ten- nessee vs. See Van Brocklin vs. Slate of Tennessee. Brooks, Marsh vs. See Marsh vs. Brooks. Brooks vs. Missouri. U. S. Sup. Ct. 18S8; 124 U. S. 394, Waite, Ch. J., Vol. II, 56 Brooks, United States vs. See United States vs. Brooks. Browder, Preston vs. See Preston vs. Broicder. Brown vs. Brown. Sup. Ct. Nor. Car. 1890; 106 X. C. Rep. 451, Davis, J.. Vol. II, 213 Brown vs. Houston. U. S. Sup. Ct. Ibti.j; 114 U. S. 622, Bradley, J., Vol. I, 571, 575 576, 578, 582 Broion, Hylton vs. See Brown vs. Hylton. Brown vs. Maryland. U. S. Sup. Ct. 1827; IJ. Wlieaton, 419, Marshall, Ch. J., Vol. I, 540, 546, 548, 570, 576, 584 Brown vs. Aew Jersey. U- S. Sup. Ct. 1S9;»; 175 U. S. 172, Bke^ver. .J.. Vol. I, 549 Brown vs. Piper. U. S. Sup. Ct. 1875; 91 U. S. 37, Stvayne, J., Vol. II, 216 Brown vs. Spragriie. X. Y. Sup. Ct. 1848; 5 Denio. 545, Beardsley, Ch. J., Vol. II, 15 Brown, Taylor vs. See Taylor vs. Brniru. Brown vs. United States. U. S. Ct. of Claims, 1897; 32 Ct. of Clms, 432, XoTT, J., Vol. II, 212, 223 Bryan vs. Keunett. U. S. Sup. Ct. 1885; 113 U. S. 179, Hahlax, J., Vol. II, 147, 179 Bryant, In re. See Bryant vs. United St'tfes. Bryant vs. United States. U. S. Sup. Ct. 1897; 167 U. S. 104, Browx, J., affirming In re Bryant. U. S. Cir. Ct. S. D. X. Y. 1897; 80 Fed. Kep. 282. Lacombe. ,I., Vol. II, 262 Bnckner vs. Finley. U. S. Sup. Ct. 1829; 2 Peters, 586, Washington. J., Vol. I, 535 Bndzisz vs. Illinois Steel Co. U. S. Sup. Ct. 1898; 170 U. S. 41, Shiras, J., Vol. II, 225 Page Budzisz, Illinois Steel Co. vs. See Illiyiois Steel Co. vs. Budzisz. Buffalo R. & P. R. R. Co. vs. Lavery. N. Y. Sup. Ct. 5th Dept.'l894; 75 Hun, 396, Bradley, J., Vol. II, 38, 213 Bunbury, Weimer vs. See Weimer vs. Bunbury. Bunch, Mitchell vs. See Mitch- ell vs. Bunch. Burcliard, The. U. S. Dist. Ct. Alabama, 1890; 42 Fed. Kep. 608, TouLMiN, J., Vol. II, 331, 332 Burge.'iS, Turpinvs. SeeTurjyin vs. Burgess. Burrows Lithographic Co. vs. Sarony. See Lithographic Co. vs. Sarony. Bnrthe vs. Denis. U. S. Sup. Ct. 1890; 133 U. S. 514, Field. J., Vol. II, 296 Bush vs. United States. U. S. Ct. of Claims, 1894; 29 Ct. of Clms. 144, Weldon, .1., V.)l. II, 217 Buttz vs. JVorthern Pacific R. R. Co. U. S. Sup. Ct. 1886; 119 U. S. 55, Field, J., Vol. II, 225 Bvzzards Bay Fishery Case. See Manchester vs. Massachu- setts. Caha vs. United States. U. S. Sup. Ct. 1894; L52 U. S. 211, Brewer. .J., Vol. II, 216 Caldera Cases, The. U. S. Ct. Claims, 1879; 15 Ct. Clms. 546, Drake, Ch. J., Vol. II, 296 Caldwell, Bohinson vs. See Eohinson vs. Caldwell. Caldwell, United Stales vs. See United States vs. Caldwell. California & Oregon Loau Co. vs. Worden. U. S. Cir. Ct. Oieooa, 1898; 85 Fed. Rep. 94 and 87 Fed. Rep. .532, Bel- linger, J., Vol. II. 225 California, Ahny vs. See Almy vs. California. Call omia, Hurtado vs. See Hurtddo vs. Cali'ornia. California Mr Call vs. See Mc- Call vs. California. California, People of, vs. Nag- lee. See People dbc. v. Naglee. California, People Betsey, The. Ship Concord, The. Ship Ganges, 'The. Ship Jane, The. Ship Jidiana^ 'the. Ship Parkman, The. Ship Star, The. Ship Turn, The. United States vs. Gilliat. Frevell vs. Bache. U. S. Sup. Ct. 1840; 14 Peters, 95, Taney, Ch. J.. Vol. II, 297 Friend vs. United States. U. S. ct. of Claims, 1894; 29 Gt. of Claims, 425, Richardson, Ch. J., Vol. II, 223 Friends, The Three. See Three Friends, The. Frost vs. Wenie. U. S. Sup. Ct. 189o; 157 U". S. 46, Har- lan, J., Vol. II, 223 Fugitive Slave Laio Case. See Prigg vs. Pennsylvania. Gaillard, Harcourt vs. See Harcourt vs. Gaillard. Galdy, Blankard vs. See Blankard vs. Galdy. Ganges, The Ship. See Ship Ganges, The. Garcia vs. Lee. U. S. Sup. Ct. 1838; 12 Peters, 511, Taney, Ch. J., Vol. I, .537 544, 554, 555, 558 Vol. II, Ifio, 216, 361 Garrison vs. United States. U. S. ct. of Claims, 1895; 30 Ct. of Claims, 272, Peelle, J., Vol. II, 223 Gay, Thomas vs. See Thomas vs. Gay. Gee Fook Sing vs. United States. U. S. Cir. Ct. App. 9th Cir. 1892; 7 U. S. App. 27, Handford, J., Vol. II, 118 Gee Fook Sing vs. United States. See Lem Hing Dun vs. Uni- ted States. Gee Hop, In re. U. S. Dist. Ct. Gala. 1895; 71 Fed. Rep. 274, Morrow, J., Vol. II, 111 Gelston vs. Hoyt. N. Y. Gt. of Errors, 1816; 13 Johnson, 561, Kent, Chan., Vol. II, 358 Genessee Chief, The. U. S. Sup. Ct. 1851; 12 Howard, 443, Taney, Gh. J., Vol. I, 541, 545 Geofroy vs. Riggs. U. S. Sup. Ct. 1890; 133 U. S. 258, Field, J., Vol. I, 190, 493, 540, 552, 553 TABLE OF CASES. Page 555, 557, 558, 501 Vol. II, 1, 23, 43, 45, 54, 237, 238 321 Georgia vs. Stanton. U. S. Sup. Ct. 18t)7; G Wallace, 50, Nelson, J., Vol. I, 536, 542 §44, 551 Vol. II, 361 Georgia, State of, vs. Brailsford. See State of Georgia vs. Brailsfo7-d. Georgia, Lascelles vs. See Lasctlles vs. Georgia. Georgia, State ot, Cherokee Na- tion vs. See Cherokee Nation vs. State of Georgia. Georgia, State of, Chisholm vs. See Chisholm vs. Georgia. Georgia, Worcester vs. See Worcester vs. Georgia. Gerke, People { Cala. ) vs. See People vs. Gerke. Giacomo, In re, Ue. See De Giacomo, In re. Gihbes, WilUaniS vs. See Wil- Ua)iis vs. Gihbes. Gibbons vs. Dist. of Colum- bia. U. S. Sup. Ct. 1886; 116 U. S. 404, Gkay, J., Vol. I, 540 Gibbons vs. Ogden. U. S. Sup. Ct. 1824; 9 Wheaton, 1, Mahshaix, Ch. J., Vol. I, 44, 478, 536, 541, 542, 546, 581 Vol. II, 349 Gibbons vs. United States. U. S. Sup. Ct. 1868; 8 Wal- lace, 269, MiLLEE. J., Vol. I, ry.\a. .542, 546, 550 Gill vs. Oliver's Executors. U. S. Sup. Ct. 1J^:>0: 11 How. .529, Grier. .1.. Vol. II, 297 Gillespie vs. Winberg. X. Y. Ct. of Com. Pleiis, 1872; 4 Daly, 318; Daly, Ch. J., Vol. I. 542 Gilliat, United States vs. See United Stntps vs. Gilliat. Gilman vs. Philadelphia. U. 5. Sup. Ct. 1805; 3 Wallace, 713, SWAYNE, J., Vol. I, 536, 542 Glass vs. The Sloop Betsey. U. S. Sup. Ct. 1794; 3 Dallas, 6. Per Curiam, Vol. II, 330, 345 Godfrey vs. Beardsley. U. S. Cir. Ct. Indiana, 1841; 2 Mc- Lean, 412, Fed. Cas. 5497, McLean, J., Vol. II, 217 Godfrey, Dawson''s Lessee vs. Page See Dofjosoji's Lessee vs. God- frfeFs, etc., Co. vs. Ralitjen's, etc., Co. U. S. Sup. Ct. 1901; 22 Sup. Ct. Reporter, 6. See 183 U. S. not yet published. Peck- ham, J., Vol. II, 828 Hooe vs. Jamieson. U. S. Sup. Ct. 1897; 166 U. S. 395, Ful- ler, Ch. J., Vol. I, 27, 540 Hooper vs. United States. U. S. ct. of Claims, 1887; 22 Ct. of Clms. 408, Davis, J., Vol. II, 284 Hop Gee, In re. See Gee Hop, In re. Page Hope, Callsen vs. See Callsen vs. Hope. Hopkins, Yick Wo vs. See Yick Wo vs. Hopkins. Hopkirk vs. Bell. U. S. Sup. Ct. 1806-7 (2 cases); 3 Cranch, 453; 4 Cranch, 163, Per curiam. Vol. II, 13, 19 Hornbuckle vs. Toombs. U. S. Sup. Ct. 1873; 18 Wallace, 648, Bradley, J., Vol. I, 539, 548 Horner vs. United States. U. S. Sup. Ct. 1892; 143 U. S. 570, Blatchford, J. Houston, Brown vs. See Brown vs. Houston. Howell, United States vs. See United States vs. Howell. Hoyt, Gelston vs. See Gelston vs. Hoyt. Hubbell vs. United States. See Caldera cases. Hubg-h vs. New Orleans &c. R. R. Co. Sup. Ct. Louisi- ana, 1851; 6 La. Ann. 495. EusTis, J., Vol. I, 155 Huckabee, United States ex rel, &c. vs. United States ex rel. Lyon vs. Hurkabee. Hiiarhes vs. Edwards. U. S. Sup. Ct. 1824; 9 Wheaton, 489, WASHiNaTON, J., Vol. II, 14, 22, 43, 179 Hunt, Hallet vs. See Hallet vs. Hunt. Hunter, Fairfax vs. See Fair- fax vs. Hunter. Hunter, Martin vs. See Mar- tin vs. Hunter. Hunter, United States vs. See United States vs. Hunter. Hunyadi Janos Water cases. See Saxlehner vs. Eisner. Hurlburt L. & C. Co., Trusrott vs. See Truscott vs. Hurl- burt L. tfc C. Co. Hurtado vs. California. U. S. Sup. Ct. 1884; 110 U. S. 516; Matthews, J., Vol. I, 561 Vol. II, 163 Hutchinson vs. Brock. Sup. Ct. Mass. 1814; 11 Mass. 119, Sewall, Ch. J., Vol. II. 48 Huus vs. N. Y. & Porto Rico S. S. Co. (Insular or Porto Rico Pilotage Case). U. S. Sup. Ct. 1901; 182 U. S. 392, Brown, J., Vol. I, 119, 126, 127 462, 503 Hyde, Harkness vs. See Hark- ness vs. Hyde. Ixiv TABLE OF CASES. Page Hjlton vs. BroTTU. U. S. Cir. Ct. Peuua. 1«U(5; 1 Washing- ton C. C. 298, ;^43, Fed. Cas. 6982, Washington, J., Vol. II, 13, 128, 146 Hyltoii vs. Uiiite«l States (Hyltou Caniane Case). U. 6. Sup. Ct. ITUii; 3 Dallas, 171, Chase, J., Vol. II, 3 Hylton, Ware vs. See ]Vare vs. Hylton. Ice, Mehlin vs. See Mehlinvs. Ice. Idler, Borgmeyer vs. See Borg- meyer vs. Idler. Illiyiols, lUinois Cent. B. B. Co. vs. See Illinois Cent. B. B. Co. vs. Illinoifi. Illinois, Moore vs. See Moore vs. Illinois. Illinois, Munn vs. See Munn vs. Illinois. Illinois, Spies vs. See Sjnes vs. Illinois. Illiuois Cent. R. R. Co. vs. Illiuois. U. S. Sup. Ct. 1892; 146 U. S. 387, Field, J., Vol. II, 158, 314, 318 Illinois, State of, Ker, vs. See Ker vs. State of Illinois. Illinois Steel Co, vs. Biidzisz. IT. S. Cir. Ct. Wiscousiu, 1897; 82 Fed. Eep. 160, Sea- man, J., Vol. II, 225 Illinois Steel Co., Budzisz vs. See Budzisz vs. Illinois Steel Co. Income Tax Case. See Pol- lock vs. Farmers L. & T. Co. Indemnity, Cliinese Cases. See Caldera Cases. Indian names. See Alherty vs. United States ; In re Cap- tain Jack ; Cherokee Nation Cases; Ex parte Croio Dog ; Elk vs. Wilkins ; Famous Smith vs.' United States ; Fellows vs. Blacksmith; Frost vs. Wenie ; In re Gon- Shay-Ee ; Goodfellow vs. Muckey ; Journeycake vs. Cherokee Nation; Journey- cake vs. United States ; Kan- sas Indians, The ; In re May- field ; New York Indians, The; New York Indians vs. United States ; Nofire vs. United States ; Pam-to-pee vs. United States ; Potawata- Page mie Indian vs. United States ; In re Bace Horse ; Sah (j*((rt/i'.s Ca.se ; Seneca Na- tion vs. Christie ; Ste{>hens vs. Cherokee Nation ; Thebo vs. Choctaiv Tribe of Indians ; United States vs. Bridleman ; United States vs. Joseph; United States vs. Kagama ; United States vs. Leathers; United States vs. New York Indians ; United States vs. Pridgeon ; United States vs. Sturgeon ; United States vs. Sunol ; United States vs. Yellow Sun ; IVard vs. Bace Horse ; M^estern Cherokee In- dians vs. United States. Indians, The New York\s. Uni- ted States. See Neiv York Indians vs. United States. Indians, The Kansas. See Kansas Indians, The. Ingersoll, Maiden vs. See Maiden vs. Ingersoll. Ing'lis vs. Sailors Snug Har- bor. U. S. Sup. Ct. 1830; 3 Peters, 99, Thompson, J., Vol. I, 554, 555, 557, 558, 561 Vol. II, 169 In re. See nnrae of party. But also see Chinese names ; In- dian names ; Extradition matters ; In re generally. In re generally. See Alter''s Ap- peal ; In re Atocha ; Lire Ayers; In re Baez ; In re Baldwin ; Calvhi's Case ; The Clinton Bridge ; In re Cooper; Dainese''s Case; la re Debs; Desbois'' Case; Ficliera's Case ; Henfield' s Case ; Jugiro, In re Shibuya ; In re Kemmler ; KennetVs Petition; Lopez and Sattler^s Case ; Lord Bishop of Natal ; Ex parte McNeil ; Ex parte Milligan ; In re Neagle ; Ex parte Ortiz ; In re Panzara ; In re TubnrcJdo Parrott ; In re Qnarles ; Sah Quah\s Case ; Ex parte Scott ; Ex parte Siebold ; In re Tatsu ; Ex parte Valandigham ; In re Vidal. Insular Cases. U. S. Sup. Ct. 1901; 182 U. S. 1-,S92 (re- ferred to collectively). See also separate references to TABLE OF CASES. Ixv Page individual cases. Vol. I, 28, GO 62, 71, 117 to 127, 190, 443, 444 Insular Oases Ai)i)endix, Vol. I, 459 to end of Vol. I. Vol. II, 4, 24, 67, 124, 129, 138 149, 153, 165, ]6(i, 167, 171 178, 180, 283 In>. 505, Haw- LKY and Hanfokd, JJ. Vol. II, 3.59 Jack, In re Captain. See Cajy- tain Jack, In re. Jackson vs. Beach. N. Y. Sup. Ct. 1800; 1 Johns. Cas. 399, Pek Cukiam, Vol. II, 38 Jackson, Black vs. See Black vs. Jackson. Jackson, Carver vs. See Car- ver vs. Jackson. Jackson vs. Clark, U. S. Sup. Cc. 1818; 3 VVlieaton, 1, Marshall, Cli. J., Vol. II, 17 Jackson vs. Decker. N. Y. Sup. Ct. 1814; 11 Johns. (N. Y. ) 418, Spkncek, J., Vol. II, 37 Jackson vs. Lunn. N. Y. Sup. Ct. 1802; 3 Johns. Cas. 109, Kent, J., V.d. II, 37, 38 Jackson vs. Porter. U. S. Cir. Ct. N. Y. 1825; 1 Paine, 457, Thompson, J., Vol. II, 207 Jackson vs Wright. N. Y. Sup. Ct. 1809; 4 Johns. Cas. 75, Van Ness, J., Vol. II, 37 James G. Swan, The, United states ys. Hee United States vs. The James G. Swan. Jamieson, Ilooe vs. See Hooe vs. Jamieson. Jane, The Ship. See Ship Jane, The. Janis vs. United States, U. S. Ct. of Claims, 1897; 32 Ct. of Clms. 407, NOTT, Ch. J.. Vol. II, 223 Jansen, Talbot vs. See Talbot vs. Jansen. Jecker vs. Magee. Same as Haver vs. Yaker. Jecker vs. Moutg^omery. U. Ix^ TABLE OF CASES. Page S. Sup. Ct. 1851; 13 Howard, 498, Taney, Cli. J., Vol. I, 500, 545, 551 Jenks, Patterson vs. See Pat- terson vs. Jenks. Jennison, Holmes vs. See Holmes vs. Jennison. Johnson, Dow vs. See Dow vs. Johnson. Johnson vs. Mcintosh. U. S. Sup. Ct. 1823; 8 Wlieaton, 543, Marshall, Ch. J., Vol. I, 478, 538, 541, 562 Vol. II, 35, 121, 173 195, 204, 20G, 207, 209, 210 Johnston, United States vs. See United States vs. Johnston. Joint Traffic Ass^n, United States vs. See United States vs. Joint Traffic Ass''n. Jones vs. McMaster. U. S. Sup. Ct. 1857; 20 Howard, 8, Nelson, J., Vol. II, 168 Jones vs. Meehan. U. S. Sup. Ct. 1.S99; 175 U. S. 1, Gkay, J., affirmin8;^; 1.") Fed. Kep. 48'J; 4 Woods, 174, Pakukk, J., Vol. II, 320 Ladiga vs. Roland. U. S. Sup. CC. 1844; -l Howard, 581, Baldwin, J., Vol. II, 217 LiKjraee, Adriance vs. See Adriance vs. Lagrave. Ld'/rcice, Bacharuch vs. See Baranvh vs. Layrave. Laird, Stuart vs. See Stuart vs. Laird. Land and Mining Companies. See Astrazarati vs. Santa Eita L. & M. Co. Cala. & Ore. Land Co. vs. Worden. Flonrnuy &c. Co. vs. Beck. Kniijkt vs. United States Land Ass'n. liio Arrita L. ft C. Co. vs. United States. Talbot vs. Silver Bow Co. Tainelin;/ vs. U. S. Freehold & Em. Co. Truscott vs. Hurl- burt L. & C. Co. Land Co., Cal. & Ore., vs. War dm. See Cal. & Ore. Laud Co. vs. Worden. Lane, Ex parte. U. S. Dist. Ct. Mich. 1881; 6 Fed. Kep. :U, Browx, J., Vol. II, 264 Lane vs. Oregon. U. S. Sup. (t. 1868; 7 Wallace, 71, Chase, Ch. J., Vol. II, 204, 536, 542 Langdeau vs. Hanes. U. S. Sup. Ct. 1874; 21 Wallace, 521 Field, J., Vol. II, 104 La Ninfa, The. U. S. Dist. Ct. Alaska, 1891; 49 Fed. Rep. 575, BUGBEE, J., and U. S. Cir. Ct. App. 9th Cir. 1890; 75 Fed. Rep. 513. Haw- LKY, J., Vol. II; 38, 83 La Bepublic Francnise vs. Srhulfz. See Eepnblic Fran- ciiisp vs. Srhnlfz. Lark and Cargo, The. U. S. Cir. Ct. Mass. 1812; 1 Gal- lison, 55. Stoky. J.. Vol. I, 548 Laseelles vs. Bidwell. U. S. Cir. Ct. S. D. N. Y. 1900; 102 Fed. Rep. 1004, Lacomue, J., ■ Vol. I, 121, 545, 547 Laseelles vs. Greorgia. U. S. Sup. Ct. 1893; 148 U. S. 537, Jackson, J., Vol. II, 404 Lattimer vs. Poteet. TJ. S. Sup. Ct. 184U; 14 Peters, 4, McLean, J., Vol. II, 214, 349 Page Laundry, Chine/te, Case. See ('hi)tis(' Laundry Case. Lau Ow Be>y, In re. U. S. Sup. Ct. 1891; 141 U. S. 583, Fuller, Ch. J., Vol. I, 28 Vol. II, 98, 100, 102, 103 Lau Ow Bew vs. United States. U. S. Sup. Ct. 1892; 144 U. S. 47, Fulleb, Ch. J., Vol. I, 28 Vol. II, 98, 100 Laverty, United States vs. See United States vs. Laverty. Lavery, Buffalo B. & P. R. R. Co. vs. See BuSalo R. & P. R. R. Co. vs. Lavery. Law vs. Thorudike. Sup. Ct. Mass. 1838; 20 Pickering, (37 Mass.) 317, Shaw, Ch. J., Vol. II, 297 Laiorence, United States vs. See United States vs. Laiv- rence. Lawson, Bachman vs. See Bachman vs. Lawson. Lawton vs. Steele. U. S. Sup. Ct. 1894; 1.V2 U. S. 133, Brown, J., Vol. II, 314, 318, 319 Leathers, United States vs. See United States vs. Leath- ers. Leavenworth L. & G. R. R. Co. vs. United States. U. S. Sup. Ct. 1875; 92 U. S. 733, Davis, J., Vol. II, 223, 225 Leavit vs. The Shakespeare. U. S. Dist. Ct. Louisiana, 1871; Fed. Cas. 8167, Du- RELL, J., Vol. II, 331 Le Bris, United States vs. See United States vs. Le Bris. Lee, Adnix., vs Thonidike. Sup. Ct. Mass. 1841 ; 43 Mass. 313, Putnam, J., Vol. II, 297 Lee Choi Chum, Steamer Spark. vs. See Steamer Spark vs. Lee Choi Chum. Lee, Garcia vs. See Garcia vs. Lee. Lee, Knox vs. See Knox vs. Lee. Lee, Meier vs. See Meier vs. Lee. Lee, United States vs. See United states vs. Lee. Legal Tender Cases. Cited collectively. Vol. I, 536, 549, 551 Legal Tender Cases. See Hep- burn vs. Griswold. Juilliard vs. Grcenman. Knox vs. Lee. TABLE OF CASES. Ixix Page Leghorn Seizures, The. U. b. Ct. of Claims, 1892; 27 Ct. of Clms. 224, Nott, J., V..1. II, 284 Leig-hton vs. United States. U. S. Sup. Ct. 1894; IGl U. S. 291, Brewek, J., affirming U. S. Ct. of Claims, 1894; 29 Ct. of Clms. 288, Peelle, J., Vol. II, 223 Leitensdorfer vs. Webb. U. S. Sup. Ct. 18.i7; 20 Howard, 176, Daniel, J., Vol. I, 538 539, 545, 551, 554 Vol. II, 161 Le Louis, The. High Ct. Aflmr. 1817; 2 Dodson Admr. 210, Sir William Scott, Vol. II, 329 Lem Hing Dun vs. United States. U. S. Cir. Ct. App. 9 Cir. 1892; 7 U. S. App. 31, Handfoud, J., (also Gee Fook Sing vs. United States. 7 U. S. App. 27) Vol. II, 118 Lem Moon Sing vs. United States. U. S. Sup. Ct. 1895; 158 U. S. 538, Harlan, J., Vol. I, 28, 479, 555 Vol. II. 107, 109, 110, 259 Leon XIII, The. Ct. of Ap- peal (Euglish) 1883; 8 Pro- bate Div. 121, Brett, M, R. Vol. II, 330 Leonard vs. Nye. Sup. Ct. M;iss. 1878; 125 Mass. 455, Gray, Cli. J., Vol. IE, 292, 297 Leong Tick Dew, In re. U. S. Cir. Ct. Cala. 1884; 10 Savsryer, 38, Sawyer, J., Vol. II, 116 Lessee of Coxe, Mcllvaine vs. See Mcllvaine vs. Coxe^s Lessee. Lessee of Daivson, Godfrey vs. See Dawson's Lessee vs. God- frei/. Lessee of Norwood, Oivings vs. See Owings vs. Norwood^s Lessee. Lessee of Pollard vs. Files. See Pollard'' s Lessee vs. Files. Lessee of Winton, Cornet vs. See Cornet vs. Winton's Les- see. Lewis vs. Bell. U. S. Sup. Ct. 1854; 17 Howard, 616, Grier, J., Vol. II, 297 Lewis vs. Hawaii &c. Sup. Ct. Hawaii, 1899; 12 Hawaii, Page 27, Frear, J., Vol. I, 220 Lewis, Missouri vs. Missouri vs. Lewis. Lew Jim vs. United States. U. S, Cir. Ct. App. 9th Cir. 1895; 29 U. S. App. 513, Mc- Kenna, J., Vol. II, 119 Libby vs. Clark. U. S. Sup. Ct. 1886; 118 U. S. 250, Mil- ler, J., Vol. II, 217 License Cases. U. S. Sup. Ct. 1847; sub nomine, Thurlow vs. Massachusetts (p. 504), Fletcher vs. Rhode Island ( i>. 540) and Pierce vs. New Hampshire (p. 554), 5 How. 504-U33, Taney, Ch. J., Mc- Lean, Catron, Daniel, Woodbury, Grier, JJ., Vol. II. 349 License Tax Cases, The. U. S. Sup. Ct. 1866; 5 Wallace, 462, Chase, Ch. J., Vol. I, 546 Life Ins. Co., Nor. West, Shep- ard vs. See Shepard vs. Nor. West Life Ins. Co. Light, The Ambrose vs. See ^•1 m6ro.se Light, The. Litchfield vs. United States. U. S. ct. of Clms. 1898; 33 Ct. of Clms. 203, Peelle, J., Vol. II, 223 Lithographic Co. vs. Sarony. U. S. Sup. Ct. 1884; 111 U. S. 53, Miller, J., Vol. I, 481 Liverpool Hero, The. U. S. Cir. Ct. Mass. 1814; 2 G Al- lison, 184, Story, J., Vol. I, 551 Liverpool &c. Steamship Co. vs. Phoenix Ins. Co. U. S. Sup. Ct., 1889; 129 U. S. 397, Gray, J., Vol. II, 189 Livingston vs. Moore. U. S. Sup. Ct. 1833; 7 Peters, 469, Johnson, J., Vol. I, 536, 542 Livingston, Steamboat Co. vs. See Steamboat Co. vs. Liv- ingston. Loan Association vs. Topeka. U. S. Sup. Ct. 1874; 20 Wal- lace, 655, Miller, J., Vol. I, 62, 542, 549 Vol. II, 350 Locke's Appeal. Penna. Sup. Ct. 1872; 72 Penna. St. 491, Agnew, J., Vol. II, 355 Lola, lite. Same opinion as Paquette HaJiana, The. Lomax vs. Pickering. U. S. Sup. Ct. 1899; 173 U. S. 26, Ixx TABLE OF CASES. Page Brown, J., Vol. I, Look Till Siujr, In re. U. S. ( ir. rt. C'ala. 1>S84; 10 Saw- yer, Sy.l FiKLi), .1., Vol. II, 116 Lopez and Sat tier's Case. Court of Errors, 1858; 1 Dearsly & Bell's Crown Cases, 525, CocKBURN and Camp- bell, J.J., Vol. II, 278 Lord liallhuore, Penn vs. See Pcnn v.'<. Lard liidtiiuore. Lord Bishop of Natal. Privy Couucil, 1804; 3 Moore Priv. Couu. N. S. 115, Westbukt, L(i. Chan., Vol. I. 62, 5.54, 555 Loughborough vs. Blake. U. S. Sup. Ct. 18i'0:5 Wlieaton, 317, Marshall, Cli. J., Vol, I, 466, 492, 539, 540, 546, 548 Loui!<, The Le. See Le Louis, The Louisiana B''d of Health, Mor- gan S. S. Co. vs. See Mor- gan S. S. Co. vs. Louisiana, . Same as New Hampshire vs. Louis- iana. Louisiana, State Board of Health, Compagnie Francaise vs. See Compagnie Fran- caise vs. State Board of Health. Louisiana, State of, Frederick- son vs. See Frederickson vs. State of Louisiana. Louisiana, State of, Poydrasws. See State of Louisiana vs. Poydras, and also Poydras vs. Treasurtjr 9; 6 Mich. 373, Campbell, J., Vol. II, 46 Maine, State of' vs. Newell. See State of Maine vs. New- ell. Maisli vs. Arizona. U. S. Sup. Ct. 1896; 164 U. S. 599, Brewer, J., Vol. II, 194 Manchester vs. Massachu- setts. U. S. Sup. Ct. 1891; 139 U. S. 240, Blatchford, J., Vol. IL 315, 319 Mann vs. Wilson. U. S. Sup. Ct. 1859; 23 Howard, 457, Catron, J., Vol. II, 217 Mann and Ross, Iowa vs. See loioa vs. Ross and Mann. Marhury vs. Madison. U. S. Sup. Ct. 1803; 1 Cranch, 137, Marshall, Ch. J., Vol. I, 62 536, 541, 544, 545, 556, 584 Vol. II, 361 Marie, The. U. S. Dist. Ct. Oregon, 1892; 49 Fed. Rep. 286, Deady, .J., Vol. II, 333 Mares vs. United States. U. S. Ct. of Claims, 1894; 29 Ct. of Claims, 197, Weldon, J., Vol. II, 223 Marriott, Oldfield vs. See Old- field vs. Marriott. Marsh vs. Brooks. IT. S. Sup. Ct, 18.")0; 8 Howard, 223, Catron, J., Vol, II, 207 Ixxii TABLE or CASES. Page Marshal, U. S., case. See In re Ncagle (California Case). Neehj vs. Henhl [N. Y.). Martiu vs. Hiintei*. U. S. Sup. Ct. 18IG; 1 Wheaton, 304, Stoey, J., Vol. I, 46, 48, 50, 557 559, 561 Vol. II, 13, 19 Martiu vs. Mott. U. S. Sup. Ct. 1827; 12 Wheaton, lU, Stoky, J., Vol. II, 98 Martin vs. Waddell. U. S. bup. Ct. 1842; 16 Peters, 367, Taney, Ch. J., Vol. I, 536, 542 559, 561 Martin, Good vs. See Good vs. Martin. Martin, United States vs. See United States vs. Martin. Maryland vs. Warren. Ct. A pp. Md. 1867; 28 Md. 338, Mjller, J., Vol. I, 474 Maryland, Brown vs. See Brawn vs. Maryland. Maryland, McCulloch vs. See McCuUoch vs. Mai-ylnnd. Maryland, Smith vs. See Smith vs. State of Maryland. Massachusetts, Commomoealfh of, vs. Slifofe. See Commun- loealth vs. Sheafe. Massachusetts, Manchester vs. See Manchester vs. Massa- chusetts. Massachusetts, Rhode Island vs. See liliode Island vs. Massa- chusetts. Massarhu setts, Thurloio -vs. See LirenS'' Cai^es. Mattingly vs. Dist. of Colum- bia. U. S. Sup. Ct. 187^; 97 U. S. 987, Stkong, J., Vol. I, 540 Maurice, United States vs. See United States vs. Maurice. Maxwell vs. Dow. U. S. Snp. Ct. 1900; 176 U. S. 581, Peck- ham, J., Vol. I, 62, 5-12, 549, 556 May vs. New Orleans. U. S. Sup. Ct. 1900: 178 U. S. 496, H.\RLA>\ .J., Vol. I, 542, 546 Majer vs. White. U. S. Sup. Ct. 1860; 24 Howard, 317, Nelson. J., Vol. II, 297 Mayes. Taltan vs. See Taltan vs. Mayes. Mayfleld, In re. U. S. Sup. Ct. 18iJl; 141 U. S. 107, Brown. .J., Vol. II. 229 Mayor qf New York, Duryee vs. See Duryee vs. Mayor of New York. Mayor of Neio York, Hender- son vs. See Henderson vs. Mayor of New York. Mayor, The, Sharpless vs. See iS//orp?e.ss vs. The Mayor. Meade vs. United States. U. S. Sup. Ct. 1869, 9 Wallnce, 691, Clifford, J., affirming in part same case, 1866; 2 Ct. of Claims, 224, Casey, Ch. J., Vol. II, 146, 310 Mechanic's Bank vs. Union Bank. U. S. Sup. Ct. 1874; 22 Wallace, 276, Strong, J., Vol. I, 551 Meehan, Jones vs. See Jones vs. Meelian. Mehlin vs. Ice. U. S. Cir. Ct. App. 8tli Cir. 1893; 12 U. S. A pp. 305, Caldwell, J., Vol. II, 221 Meier vs. Lee. Sup. Ct. Iowa, 1898; 106 luwa, 303, Given, J., Vol. II, 44 Meigs vs. McClung. U. S. Sup. Ct. 1815; 9 Cranch, 11, Marshall, Cb. J., Vol. II, 217 603 Mein, Higginson vs. See Hig- giiison vs. Mein. Meredith vs. United States. U. S. Sup. Ct. 1839; 13 Pe- ters, 486, Story, J., Vol. I, 571 Merritt, Hilton vs. See Hilton vs. Merritt. Merryman vs. Bourne. U. S. Sup. Ct. 1869; 9 Wallace, 592, SwAYNE, J.. Vol. II, 152, 184 Mesa vs. United States. U. S. Sup. Ct. 1862; 2 Black, 721, Per Curiam. Vol. II, 184 Metropolitan R. R. vs. Dist. ot Coluuihia. U. S. !Sup. Ct. 1889; 132 U. S. 1, Brad- ley, J., V(d. I, 540 Metz, Milnor vs. See Milnor vs. Metz. Metzger, In re falso reported as Metzgar, In re). U. S. Sup. Ct. 1847; 5 Ho\\aid, 176, McLean, J.; sauie case below, U. S. Dist. Ct. S. D. N. Y. 1847; Fed. Cas. 9511, Betts, J. See also N. Y. Sup. Ct. 1847; 1 Barbour, 248, Edmonds, J.. Vol. 11, 63, 79 81, 105, 128, 259, 324 TABLE OF CASES. Ixxiii Page Mexican Award Cases. See Frelinghuysen vs. Key. La Abra cbc. vs. Fri'liiiglnq/sen. United States vs. Weil. Unit- ed States ex rel. Boynton vs. Blaine. Mexican Boundary Case. See United States vs, Rio Grande Dam &c. Co. Mexican Ditty Case. See Flem- ing vs. Page. Miami County Commis., Peck vs. See Peck vs. Miami County Coinmis. Michigan, Lyng vs. See Lyng vs. Michigan. Michigan, People of, vs. Tyler. See People vs. Tyler. Miller vs. Sherry. U. S. Sup. Ct. 1864; 2 Wall. 237, SWAYNE, J., Vol. II, 295 Miller vs. United States, U. S. Suji. Ct. 187U; 11 Wallace, 268, Strong, J., Vol. I, 536, 5-14 Vol. II, 265, 361 Miller, In re. U. S. Cir. Ct. Penna. 18S5; 23 Fed. Rep. 32, AcHESON, J., Vol. II, 265 Milligan, Ev parte. U. S. Sup. Ct. 1866; 4 Wallace, 2, Davis, J., Vol. I, 541, 542 545, 551, 556 Miln, New York vs. See New York vs. Miln. Milner, Minn. & St. P. R. R. Co. vs. See Milner vs. Minn. &c. R. R. Co. Milnor vs. Metz. U. S. Sup. Cc. lS-i-2; 16 I'etei-s, 221, Ca- TROX, J., Vol. II, Mineaii,In re. U. S. Cir. Ct. Vermont, 1891 ; 45 Fed. Rep. 188, Wheelek, J., Vol. II, Miner's Bank vs. Iowa. U. S. Sup. Ct. 1851; 12 Howard, 1, Daniel, J., Vol. I, Mining and Land Companies. See Land and Mining Com- panies. Minnesota & St. P. R. R. Co. vs. Milner. U. S. Cir. Ct. Mich. 1893; 57 Fed. Rep. 276, Per Curiam.VoI. II, 51 Minnesota, State of, vs. Camp- bell. See State of Minnesota vs. Camphell. Minor vs. Happersett (Wom- an's Rights case). U. S. Sup. Ct. 1874; 21 Wallace, 162, 293 267 275 539 Page Watte, Ch. J., Vol. I, 479, 542 556, 557 Minter vs. Crommelin. U. S. Sup. Ct. 185.-); 18 Howard, 87, Catkon, J., Vol. II, Misaionary Union, Turner vs. See Turner vs. -4m. Bap. Miss. &c. Missouri vs. Andriano. U. S. Sup. Ct. 1890; 138 U. S. 496, BUOWN, J., Vol. II, Missouri vs. Lewis. U. S. Sup. Ct. 1879; 101 U. S. 22, 217 169 Bradley, J., Vol. I, 541, 545 549 See Ifissouri, Brooks vs. Brooks vs. ^lissouri. Missouri, CuuDuings vs. See Cummings vs. Missouri. Missouri, Ewert vs. See Ewert vs. Missouri. Missouri K. & T. R. R. Co. vs. Roberts. U. S. Sup. Ct. 1894; l.j2 U. S. 114, Field, J., Vol. II, 217 Missouri K. & T. R. R. Co. vs. United States. U. S. Sup. Ct. 1875; 92 U. S. 760, Davis, J., Vol. II, 217 3Iinsouri River R. R. Co., Stroud vs. See Stroud vs. Missouri d-r. R. R. Co. Mitchell vs. Bunch. Ct. of Chancery, N. Y. 1831; 2 Paige's Ch. 605, Walworth, Ch-.in., Vol. II, 295 Mitchell vs. Harmony. U. S. Sup. Ct. 1851; 13 Howard, 115, Taney, Ch. J., Vol. I, 500 549, 551 Mitchel vs. United States. IT. S. Sup. Ct. 1835; 9 Peters 711, Baldwin, J., same case 1841; 15 Peters, 52, Wayne, J., Vol. I, 538, 539, 553, 554, 5-59 Vol. II, 147, 16-.', 165, 207, 232 Mobile vs. Eslava. U. S. Sup. Ct. 1842; J 6 Peters 234, Mc- Lean, .T., Vol. I, 560 Moncan, In re (alias Ah Wah ). U. S. Cir. Ct. Ore XVI TABLE OF CASES. Page 213, 229 New York Indians, United States vs. See United States vs. yen: Yoric Indians. Jfew York Iiis. Co. vs. Roulet. N. Y. Lt. uf E ITU IS, 1840; 24 Wendell, 50-3, Buauish, Prest. d:c., Nki-SON, Cli. J., Vol. II, 298 New Vork Life Ins. Co., Varet vs. See Vuret vs. New York Life Inn. Co. New York, Mayor of, Duryee vs. See Duryee vs. Mayor &c. New York, Mayor of, Hender- son vs. See Ilenderson vs. Mayor of Neio York. New York {People), Canal Ap- jyraisers vs. See Canal Ap- praisers vs. People. New York {People) vs. Conklin. See People (New York) vs. Conklin. New York, People of &c. vs. Curtis. See People &c. vs. Curtis. New York, People of &c. vs. Dibble. See Cutler vs. Dibble. New York, People of &c. vs. McLeod. See People &c. vs. McLeod. New York, People of &c. vs. Stout. See People &c. vs. Stout. New York, People of, vs. War- ren. See People ifcc. vs. War- ren. New York (State of). Canal Appraisers vs. See Canal Ap- praisers vs. New York. Nicholson, Gaines vs. See Gaines vs. Nicholson. Nina, The. Arlm. & Eccl. Ct. (En<,rlisli) 1867; L. K. 2 Adm. aud Eccl. 44; Sib Robert Phillimoke; s. c. on ap- peal, L. R. 2 Privy Coim. 38, Lord Romii.ly, Vol. II, 3.30 Niiifa La. See La Ninfa, The. Nishimiira Ekiu vs. United States. See Ekiu, Nishimura, vs. United States. Noflre vs. United States. U. S. Sup. Ct. 1897; 164 U. S. 6.j7, Brewer, J., Vol. II, 229 Norman vs. Heist. Penna. Sup. Ct. 1843; b W. & S. (Penn.), 171, Gibson, Ch. J., Vol. I, 474 Page Norris vs. City of Boston. iPasseng'er cases). U. s. Sui). Ct. 1849; 7 Howard, 283, Vol. II, 51, 59 North Dakota, State of, ex rel. Tonipton vs. Donoyer. See State . .1.. Vol. II, 214 Provost vs. Greueaiix. U. S. 8up. Ot. 1S50; 19 Howard, 1, Taney, Cli. J., Vol. 11, 51, 54 Pridijeoti, United 6t(ites vs. See United States vs. Pridye- <>n. Pri^g vs. Penusylvania i Fug^- itive Slare law). U. S. 8up. Ct. 1841': 16 Peters, 589, Stoky, J., Vol. I, 536, 541, 543 Prize Cases, The. U. S. Sup. Ct. 18u2; 2 Black, 635, Gkiek, J., Vol. II, 124, 126 Propagation of the Gospel, Society for. See Society for the Prnpfn/afioiL if the Gospel. Provincial Fisheries, In re. Slip. Ct. Canada, 189.J; 26 Can. Sup. Cc. 444, Sir Henry Strong, Taschereau, GWYNNE, GiROUARD, J J. Vol. II, 320 Quah, Sah, case of. See Sah QuaVs case. Quarantine Cases. Compagnie Francaise vs. State Board of Health. Minn. & St. P. R. R. Co. vs. Milner. Morgan S. S. Co. vs. Board of Health, La. People vs. Compagnie Gmerale. Quarles, In re. U. S. Sup. Ct. 1895; 108 U. S. 532, Gray, J., Vol. I, 537, 551 Queue, The Chinese Case. See Ho-Ah-Koio vs. Nunan. Quimby, United States vs. See United States vs. Qnimby. Quock Ting vs. United States. U. S. Sup. Ct. 1891; 140 U. S. 417, Field, J., Vol. II. 113 Quong Woo, In re. See United States vs. Quong Woo. Quong Woo, United States vs. See United States vs. Quong Woo. Rahasse, Succession of. Sup. Ct. Louis'a, 1>95; 47 La. Ann. 112*; & 1452. Miller, J.: and 1897, 49 La. Ann. 1405, NiCHOLLS. Ch. J., Vol. II, 53, 55 Race Horse, In re. U. S. Cir. Ct. Wyoming, 1895; 70 Fed. Eep. 598, RiNER, J., reversed sub nomine Ward vs. Race Horse. U. S. Sup. Ct. 1896; Page 163 U. 8. 504, White, J., Vol. II, 33, 34, 63, 86, 130,132 133, 134, 214 Race Horse, Ward vs. See Ward vs. Race Horse. Radford, Craig vs. See Craig vs. Radford. Rahrer, In re. U. S. Snp. Ct. 1891; 14U U. S. 545, Fuller, Cli. J., Vol. II, 51 Ra/itjen's tfcc. Co., HolzapfeVs &c. Co. vs. See HolzapffVs &c. Co. vs. Rahtjen's &c. Co. Railroad Co., Dennick vs. See Bennick vs. R. R. Co. Railroad Companies. See Bell vs. All. & Pac. R. R. Co. BelVs Gap R. R. Co. vs. Pennsyhania. Buffalo R. & P. R. R. Co. v.s. Larery. Butiz \s,. Northern Pacific R. R. Co. Capital 'Traction Co. vs. Hif. Cherokee Nation vs. Southern Kansas Ry. Co. Chicago, Milmaukee S. Sup. Ct. 1815; 9 Cianch, 102, Marshall, Cli. .1.. Vol. II, 278 Sliiy Star, The. U. S. Ct. of Claims, 1900; 35 Ct. of Clms. 387, Weldon, J., Vol. II. 284 Ship Tom, The. U. S. Ct. of I Claims, 1893: 29 Ct. of Clms., 68, NoTT, J., Vol. II, 284 Ships, names of. See Vessels, names of. Shively vs. Bowlby Sup. Ct. 1894; 152 Gray, J., Vol. I, U. S. U. S. 1, 118, 129, 538 539, 541 159, 314 Vol. II, Shong' Toon, In re. U. S. Dist. Ct. Cala. 1884; 10 Saw- ver, 268, Hokfmax, J., Vol. II, 78 Short vs. Deacon. Sup. Ct. Penna. 18l'3: 10 Sarg. & Kawle, 125, Tilghman, Ch. J., Vol. II, 270 Shonp, Opel vs. See Opel vs. Shoup. Sibbald, United States vs. See Uvifpd States vs. Sibbald. Siebold, Ex parte. U. S. Sup. Ct. 1879; 100 U. S. 371, Bradley, J., Vol. I, 537, 543 551, 556 Silver Bow Co., Talbot vs. See Tal'iot vs. Silver Bow Co. Slaughterhouse Cases. U. S. Sup. Ct. 1812; 16 Wallace. 36, Miller, J., Vol. I, 53, 62, 537 541, 543, 550, 556, 557, 583 Vol. II, 1, 56, 57, 58, 59 Slidell vs. Grandjean. U. S. Sup. Ct. 1883; 111 U. S. 412, Field, J., Vol. II, 179 Slooj) Betsey, Glass, vs. The. See Glass vs. The Sloop Betsey. Smith vs. State of Maryland. U. S. Sup. Ct. 1810; 6C'raDcli, 286, Washington, J., Vol. I, 557 Vol. II, 16, 318 Smith vs. Turner (Passen- ger cases). U. S. Sup. Ct. 1849; 7 Howard, 283, Vol. II, 51 Smith (Famous) vs. United States. See Famous Smith vs. United States. Smith, State (So. Car.) vs. See State So. Car. vs. Smith. Snrith, Thoringtonvs. See Thor- ington vs. Smith. Snow vs. United States. U. S. Sup. Ct. 1873; 18 Wallace, 317, Bradley, J., Vol. I, 539 Snug Harbor, Sailors\ Inglis vs. See Inglis vs. Sailors'' Snug Harbor. Society for the Propagation of the Gospel vs. Hartland. U. S. Cir. Ct. 1814; 2 Payne, 536; Fed. Cas. 13155, Thomp- son, J., Vol. II, 12 Society for the Propagation of the Gospel vs. Pawlett. U. S. Sup. Ct. 1830; 4 Peters, 480, Story, ,J., Vol. II, 12 Society for the Propagation of the Gospel vs. Town of New Hayen. U. S. Sup. ct. 1823; 8 Wheaton, 464, Washing- ton, J., Vol. II. 12. 131, 146 Society for the Propagation of the Gospel vs. Wheeler. U. S. Cir. Ct. New Hamp- shire, 1814; 2 Matthews, 105; Fed. Cas. 13156, Story, J., Vol. II, 12 Society for the Propagation of the Gospel, State of Vermont vs. See State of Vermont vs. Societi/. tfcc. Soon Hing vs. Crowley TABLE OF CASES. Ixxxv Page (Chinese Laundry Case). U. S. Sup. Ct. 188.'j; 113 U. S. 703, FlKLD, J., Vol. II, 131 Soulard vs. United States (Smith vs. Uiiited States). U. S. Sup. Ct. 1830; 4 Peters, 511, Makshall, Cli. J., and 1836, 10 Petors, 100 and 326, Baldwin, J., Vol. I, 538, 554, 559 Vol. II, 147, 165, 178 Southack, Fox vs. See Fox vs. Southack. South Carolina Dispensanj Case. See Cantini vs. Till- man. South Carolina, State of, vs. Smith. See State [So. Car.) vs. Smith. Southern Kansua liy. Co., Cher- okee Nation vs. See Chero- kee Nation vs. Southern Kan- sas By. Co. Spark, Steqmer vs. Lee Choi Chum. See Steamer Spark vs. Lee Choi Chum. Spies vs. Illinois (Chicago Anarchist case). U. S. Sup. Ct. 1887; 123 U. S. 131, Waite, Ch. J., Vol. I, 543 549, 55G, 557 Vol. II, 55, 56 Spoliation Claims. See French Spoliation Caxes. Sprague vs. Thompson. U. S. Sup. Ct. 1.-83; 118 U. S. 90, Matthews, J., Vol. I, 548 Sprague, Broionvs. See Brown vs. Sprar/ue. Spring'vilie vs. Thomas. U. S. Sup. Ct. 1897; 166 U. S. 707, Fuller, Ch. .J., Vol. I, 539 Sp!/buck, Summers vs. See Summers vs. Spy buck. Stairs vs. Peaslee. U. S. Sup. Ct. 1855; 18 Howard, 521, Taney, Ch. J., Vol. I, 167 Standley vs. Roberts. U. S. (Mr. Ct. App. 8 Cir. 1894; 59 Fed. Rep. 836, Sanborn, J., Vol. II, 221 Stanton, Georgia vs. See Georgia vs. Stanton. Star, The Ship. See Ship Star, The. State Board of Health, Com- pagnie Francatse vs. See Compa.gnie Francatse vs. State Board of Health. State of Arkansas, Beers vs. See Beers vs. State of Arkan- sas. Page State of Arkansas, Wilbiirn vs. See \Vilbur7i vs. State of Ar- kansas. State of California, Almy vs. See Almy vs. California. State of California, Hurtado vs. See Hurtado vs. California. State of California, McCall vs. See McCall vs. California. State of California, People of, vs. Gerke. See People vs. Gerke. State of California, People of, vs. Naglee. See People vs. Naglee. State of California, People of, vs. Washington. See Peo- ple {Cala.) vs. Washington. State of Georgia vs. Brails- ford. U. S. Sup. Ct. 1794; 3 Dallas, 1, Jay, Ch. J., (aud otiier justices), Vol. II, 11 State of Georgia vs. Stanton. See Georgia vs. Stanton. State of Georgia, Cherokee Na- tion vs. See Cherokee Nation vs. State of Georgia. State of Georgia, Chisholm vs. See Chisholm vs. Georgia. State of Georgia, Lascelles vs. See Lascelles vs. Georgia. State of Georgia, Worcester vs. See Worcester vs. Georgia. State of Illinois, Illinois Cent. R. R. Co. vs. See Illinois Cent. R. R. Co. vs. Illinois. State of Illinois, Ker vs. See Ker vs. State of Illinois. State of Illinois, Moore vs. See Moore vs. Illinois. State of Illinois, Mnnn vs. See Munn vs. Illinois. State of Illinois, Spies vs. See Spies vs. Illinois. State (Iowa) vs. Ross and Maun. Sup. Ct. Iowa, 1866; 21 Iowa, 467, Weight, J., Vol. II, 278 State of Iowa, Miner'' s Bank vs. See Miner'' s Bank vs. Iowa. State of Iowa, Rhodes vs. See Rhodes vs. Iowa. State of Kentucky, Crntcher vs. See Crntcher vs. Kentucky. State of Kentucky, Ilauus vs. See CommomoeaWi vs. Hawes. State of Louisiana vs. Poy- dras. Sup. Ct. La. 1854; 9 La. Ann. 165, Campbell, J., Vol. II, 52 State of Louisiana, Frederick- Ixxxvi TABLE OF CASES. Page son vs. See Frederickson vs. Stiitt' of Lnitisiana. State of LoutHiaiKi, Kennardvs. See KetiiKird vs. Luuisiana. State of Luuisiana, New Hamp- shire vs. See New Hamp- shire vs. Louisiana. State of Louisiana, New York vs. Same as New Hampshire vs. Louisiana. State of Louisiana, Treas'r of, Poydras vs. See Poydras vs. Treasurer of Louisiana. State of Maine vs. Newell. Sup. Ct. Maine, 1892; 84 Maine, 465, Emery, J., Vol. II, 229 State of Maryland, Brown vs. See Brown vs. Maryland. State of Maryland, McCulloch vs. See McCulloch vs. Mary- land. State of Maryland, Smith vs. See Smith vs. State of Mary- land. State of Maryland vs. Warren. See Maryland vs. Warren. State of Massachusetts, Man- chester vs. See Manchester vs. Massachusetts. State of 3Iassachusefts, Rhode Island vs. See Rhode Is- land vs. Mass(tc}ius>-tts. State of Massachu.^etts, Sheafe vs. See Commonwealth vs. Sheafe. State (f Massachusetts, Thurlow vs. See License Cases. State of Michif/an, People o/, vs. Tyler. See People {Mich. )vs. Tyler. State of Minnesota vs. Camp- bell. Sup. Ct. Minn. 1893; 53 Minn. 354, Mitchell, J., Vol. II, 230 State of Missouri vs. Andriano, See Missouri vs. Andriano. State (f Missouri. Brooks vs. See Brooks vs. Missouri. State of Missouri, Cumin ings vs. See Cumniin'js vs. Missouri. State of Missouri, Eniert vs. See Emert vs. Missouri. State of Missouri vs. Lewis, See Missouri vs. Lev:is. State of Nebraska, Boyd vs. See Boyd vs. Nebraska. State of Nevada, Crandall vs. See Crandall vs. Nevada. State of New Hampshire vs. Page Louisiana. See New Hamp- shire vs. Louisiana, State of New Hampshire, Pierce vs. See License Cases. State of New Jersey vs. Wil- son. U. S. Sup. Ct. 1812; 7 Crancli, 164, Marshall, Ch, J., Vol. II, 230 State qt New Jersey, Brown vs. See Brown vs. New Jersey. State of New York vs. Dibble. See Cutler vs. Dibble. State of New York vs. Louis- iana. Same as New Hamp- shire vs. Louisiana. State of New York (People of), Canal Appraisers vs. See Canal Appraisers vs. People. State of New York [People) vs. Conklin. See Peoj^le (N. Y.) vs. Conklin. State of Neio York, People &c. vs. Curtis. See People (N. Y.) (tc, vs. Curtis. State of New Yo7-k, ( People of,) vs. McLeod. See People (N. Y.) vs. McLeod. State of New York, People &c. vs. Stout. See People (N. Y.) &c., vs. Stout. State of New York, People of vs. Warren. See People (N. Y.) vs. ]Varren. State (North Dakota) ex rel. Tomptou vs. Douoyer. Sup. Ct. N. Dak. 1897; 6 No. Dak. 586, Bartholomew, J., Vol. II, 214 State (Ohio) vs. Vanderpool. Sup. Ct. Ohio, 1883; 39 Oliio, 273, Johnson, Ch. J., Vol. II, 271 274 State of Oregon, Lane vs. See Lane vs. Oregon. State of Penna. vs. Wheeling Bridge Co. See Pennsyl- vania vs. Wheeling Bridge Co. State of Penna., Bell's Gap R. R. Co. vs. See BeWs Gap R. R. Co. vs. Pennsylvania. State of Penna., Phil a. & Southern S. S. Co. vs. See Phda. & Southern S. S. Co. vs. Pennsylvania. State of Penna., Prigg vs. See Prigg vs. Pennsylvania. State of Rhode Island vs. Mas- sachusetts. See Rhode Is- land vs. Massachusetts. TABLE OF CASES. Ixxxvii Page State of Rhode Island, Fletcher vs. See License Cases. State (So. Car.) vs. Smith. Ct. Appeals, ISo. Car. 1829; 1 Bailey, So. Car. Law. 283; 19 Am. Decisions, 679, Johnson, J., Vol. II, 278 State of Tenncsste, Coleman vs. See Coleman vs. Ten- nessee. State of Tennessee vs. Davis. See Tennessee vs. Davis. State of Tennessee, Henderson vs. See Henderson vs. Ten- nessee. State of Tennessee, Van Broclc- lln vs. See Van Brocklin\s. State oj Tennessee. State oj Texas vs. White. See Texas vs. White. State of Texas, Asher vs. See Asher vs. Texas. State {Texas), Blandford vs. See Blandford vs. Slate. State of Texas, United States vs. See United States vs. Texas (tw^o cases). State of Texas, White vs. See White vs. Texas. State of Utah, Thompson vs. See Thompson vs. Utah. State of Vermont vs. Brews- ter. Sup. Ct. Vermont, 1835; 7 Vt. 118, Phelps, J., Vol. II, 278 State of Vermont vs. Society for the Propagation of the Gospel. U. S. Cir. ct. Ver- nioat. Fed. Cas. 16919 and 16920, 1826, Thompson, J., Vol. II, 12 State of Vermont, O'Neill vs. See 0^ Neillvs. Vermont. State of Virginia, Cohens vs. See Cohens vs. Virginia. Steamboat Company vs. Livingston. New York Ct. of Errors, 1825 ; 3 Cowen, 713, Sandford Chan., Vol. I, 549 Steamer Sparli vs. Lee Choi Chum. U. S. Cir. Ct. Cal. 1 Sawyer, 713, Sawyer, J., Vol. II, 342 Steamship &c. Companies. Com- pagnie Francaise vs. State Board f((fes vs. Stur- r/eon. St urges vs. Crowuinsliield. U. S. Sup. Ct. 1819; 4 Wheaton, 122, Marshall, Ch. J., Vol. I, 549 Sturges vs. The Collector &c. U. S. Sup. Ct. 1870; 12 Wal- lace, 19, Clifford, J., Vol. II, 74 Succession of Pargoud. See Pargoud, Succession of. Succession of Babasse. See Pabasse, Succession of. Succession of Rixner. See Rixner^s Succession. Succession of Sala. See Salads Succession. Suffolk Iiis. Co., Williams vs. See Williams vs. Suffolk Ins. Co. Sugar, Thirty Hogsheads of, vs. Boyle. See Thirty Hogs- heads (fee. vs. Boyle. Summers vs. Spybuck. Sup. Ct. Kansas, 18U3; 1 Kansas, 394, Cobb, Cli. J., Vol. II, 217 Sun Mutual Ins. Co. vs. United States. See Caldera Cases. Sunol, United States vs. See United States vs. Sunol. Sulphur, I). & M. Co., Utah M. & Mfg. Co. vs. See Utah M. & Mfg. Co. vs. Dickert & M. Sulphur Co. Swan, The. U. S. Dist. Ct. Washington, 1892; oO Fed. Rep. 108; Hand ford, J., Vol. I, 537, 557 Swan, The James G., United States vs. .See United States vs. The James G. Swan. Stveers, Bepublica vs. See Re- publica vs. Siveers. Taber vs. United States. U. S. Cir. Ct. Mass. 1839; 1 Story, 1. Story, J.. Vol. I, 549 Talbott vs. Janseu. U S. Sup. Ct. 179.v; 3 Dallas, 133 RUTLEDGE, Ch. J., Vol. II, 124 Talbott vs. Silver Bow Co. Page U. S. Sup. Ct. 1891; 139 U. S. 438, Brewer, J., Vol. I, 539, 547 Taltan vs. Mayes. U. S. Sup. Ct. 1896; 163 U. S. 376, White, J., Vol. I, 562 Vol. II, 221, 231 Tameiliug vs. U. S. Freehold and Emigration Co. U. S. Sup. Ct. 1876; 93 U. S. 644, Davis, J., Vol. II, 185 Tampico Duty Case. See Flem- ing vs. Page. Taylor vs. lirown. U. S. Sup. Ct. 1893; 147 U. S. 640, Fuller, Ch. J., Vol. II, 34 Taylor vs. Morton. U. S. Cir. Ct. Mass. 1855; 2 Curtis. 454, Curtis, J. Same case afiBi med U. S. Sup. Ct. 1862; 2 Black, 481, Clifford, J., Vol. I, 448 544, 559, 560, 561 Vol. II, 63, 68, 69. 71, 72, 183, 361 Taylor, United States vs. See United States vs. Taylor. Tax Cases. See License Tax Cases, The. Emncltun vs. Moore (War Bevenue Tax). Philadelphia S. S. S. Co. vs. Pennsylvania. Pollock vs. Farmers^ Loan & Trust Co. ( In com e Tax of 1894). Veasie vs. Moor [State Bank Tax). Taxing District, Shelby, Bobbins vs. See Bobbins vs. Shelby Taxing District. Taylor, Shepard vs. See Shep- urd vs. Taylor. Tennessee vs. Davis. U. S. Sup. Ct. 1879; 100U..S. 2.57, Strong, J., Vol. I, 537, 543, 551 556, 557 Tennessee, Coleman vs. See Coleman vs. Tennessee. Tennessee, Henderson vs. See Henderson vs. Tennessee. Tennessee, State of. Van Brock- Un vs. See Van Brocklin vs. Tennessee. Territo)~y of Arizona, Marsh vs. See Marsh vs. Arizona. Texas vs. White. U. S. Sup, Ct. 1868; 7 Wallace, 700, Chase, Ch. J., Vol. I, 250, 537 541, .543, 557 Texas, State of, Asher vs. See Asher vs. Texas. Texas. State of, Blandford vs. See Blandford vs. State. Texas, United States vs. See TABLE OF CASES. Ixxxix Page United States vs. Texas (2 cases). Thatcher, Stevens vs. See Steveihs vs. Thatcher, Tiiayer, Nebraska ex rel., Boyd vs. See Boyd vs. Nebraska. Tliebo vs. Choctaw Tribe of Indians. U. S. Cir. Ct. Ap- peals, 8t,h Cir. 189.j; 66 Fed. Kep. 372, Caldwell, J., Vol. II, 219 Thin^valla Line vs. United States. U. S. Ct. Claims, 1881); 24 Ct. Clms. 2.")5, KiCH- AHDsoN, Ch. J., Vol. II, 77, 301 Thirty Hog-sheads of Sngar vs. Boyle. U. S. Sup. Ct. 1815; y Crancli, 191, Mar- shall, Ch. J., Vol. I, 498, 5.51 557 Thomas vs. Gay. U. S. Sup. Ct. 1898; 161) U. S. 264, Shiras, J., Vol. I, 539, 547 Vol. II, 86, 221 Thomas vs. United States. U.S. ct. Claims, 1 Devereux, 29, Blackford, J., Vol. II, :>08 Thomas, Danfarth vs. See Daufnrfh vs. Thomas. Thomas, In re. U. S. Dist. Ct. 8. D. N. Y. 1874; 12 Blatch. 370, Fed. Cas. 13,887, Blatchford, J., Vol. II, 267 Tfiomas, Raymond vs. See Raymond vs. Thomas. Th(>))ias, Springvllle vs. See Sprinr/ville vs. Thomas. Thomas, United Stales vs. See United States vs. Thomas. Thompson vs. Utah. U. S. Sup. Ct. 1898; 170 U. S. 343, Harlan, J., Vol. I, 539, 545 550, 556 Thompson, Kilboiirn vs. See Kllbourn vs. Thompson. Thompson, Sprague vs. See Sprague vs. Thompson. Thompson vs. The Catherina. See Catherina, The. Thoi-ington vs. Smith. U. S. Sup. Ct. 1868; 8 Wallace, 1, Chase, Ch. J., Vol. I, 564 Thorndike, Law vs. See Law vs. Thorndike. Thorndike, Lee, Admx., vs. See Lee, Admx., vs. Thorndike. Three Friends, The, U. S. Sup. Ct. 1896; 166 U. S. 1, Fuller, Ch. J., Vol. II, 359 Three hundred and Jifty-six Bales of Cotton. See Am. Ins. Co. vs. Canter. Thiirlowvs. Massadiusettt<, See License Cases. Tiburcio Parrott, In re. See Parrott, In re Tiburcio. Tillman, Cantini vs. See Gan- tini vs. Tillman. Tiiigi/, Bas vs. See Bas vs. Tingy. Titusoille, Brennan vs. See Brennan vs. Titusville. Tobacco Factory, United States vs. See United States vs. To- bacco Factory. Tobin vs. Wilkinshaw (three cases). U. S. Cir. Ct. Cala. 1855 and 1856; 1 McAllister, 26, 151, 186; Fed. Cas. 14,0ii8-69-70, McAllister, J., Vol. II, 179 Tompkins, Chicago, Mil. hs vs. See Josephs vs. United States. United States, Journeycake vs. See Journeycake vs. United States. United States vs. Jimsf Ah Lung. U. S. Sup. Ct. 1888; 124 U. S. 621, Blatchford, J., Vol. II, 94, 95, 98, 121 United States vs. Kai?ama. U. S. Sup. Ct. 1886; 118 U. S. ;i75; Miller, J., Vol. I, 540 557, 559, 562 Vol. II, 198, 226, 231, 2.32 rnited States, Kendall vs. See Kendall vs. United States. United States vs. King & Coxe. U. S. Sup. ct. 1845; Page 3 Howard, 773; and 1849; 7 Howard, 833, Taney, Cli. J., Vol. II, 154, 165 United States, Kinkead vs. See Kinkead vs. United States. United States vs. Knight. U. S. Sup. ct. 1861 ; 1 Black, 227, Clifford, J., Vol. II, 184 United States, La Abra S. M. Co. vs. See La Abra &c. vs. United States. United States, Labadi vs. See Labadi vs. United States. United States vs. La Chapelle. U. S. Cir. Ct. Washington, 1897; 81 Fed. Kep. 152, Hand- FOKD, J., Vol. II, 212 United States Land Ass''n, Knight vs. See Knight vs. Land Ass'n. United States v. Layerty. U. y. Dist. ct. La. 1815; 3 Mar- tin ( O. S. ) 733, Vol. II, 169 United States, Lau Ow Bew vs. See Lau Ow Bew vs. United Statps. United States vs. Lawrence. U. S. Cir. Ct. S. D. N. Y. 1876; 13 Blatchford, 295, Fed. Cas. 15,573, Benedict, J., Vol. II, 271. 272, 273 United States vs. Leathers. U.S. Sup. Ct. 1882; 106 U. S. 196, Miller, J., Vol. II, 231 United States, Leavenworth &c. R. B. Co. vs. See Leav- enworth &C.B. B. Co. vs. Uni- ted States. United States vs. Le Bris. U. S. Sup. Ct. 1887; 121 U. S. 278, Waite, Ch. J., Vol. II, 214 United States vs. Lee. U. S. Sup. Ct. 1882; 106 U. S. 196, Miller, J., Vol. II, 299 United States, Leighton vs. See Leighton vs. United States. United States, Lem Hing Dun vs. See Lem Hing Dun vs. United States. United States, Lem Moon Sing vs. See Lem Moon Sing vs. United States. United States, Leio Jim vs. See Lew Jim vs. United States. United States, Litchfield vs. See Litchfield vs. United States. United States, Love vs. See Love vs. United States. United States, Lucas vs. See Lucas vs. United States. XCIV TABLE OF CASES. Page United States vs. Lyude. U. y. feup. Ut. I8T0; 11 Wallace, 632, Bkadley, J., Vol. II, 144, 146 United Stafea, McAllister vs. See McAllinter vs. United Sidles. Uuited States vs. McBratney. U. S. Sup. Ct. 16M; 104 U. S. 621, GitAY, J., Vol. II, 86, 230 United States, Malionerj vs. See Ma/ionei/ vs. United States. United St(ite!<. 31 ares vs. See Hares vs. Uniled States. United States Marshal Cases. See In re I*' eagle, California Case and Necly vs. Henkel ( U. S. Mar.fhal, N. Y.) United Slates vs. Martin. U. S. Dist. Ct. Oregon, 1883; 14 Fed. Rep. 817,Deady, J., Vol. II. 230 United States vs. Maurice. U. S. tir. Ct. Viigiui:!, 1823; 2 Brockenbrough, 96, Mar- SHAi.i,, J., Vol. I, 336 United States, Meade vs. See Meade vs. United States. United States, Meredilh\s. See Meredith vs. United States. United States, Mesa vs. See Mesa vs. U)iited Slates. United States, Miller vs. See Miller vs. Uxited States. United States, Missouri, K. & T. R. B. Co. vs. See Mis- souri, K. & T. B. B. Co. vs. Uniled States. United States, Mitchel vs. See Mitchel vs. United States. United Stales, Mononuahela Nav. Co. vs. See Momnvia- hela Nav. Co. vs. Uniled States. United States vs. Moore. U. S. Sup. Ct. 1851; 12 How- ard, 209, Catkox, J., Vol. II, 194 Uniled States, Moore vs. See Moore vs. United States. United States vs. Morant. U. S. .-iup. Ct. 1887; 12:! U. S. .S3.-., Br ABLE Y, J., Vol. II, 194 United States vs. Moreno. U. S. Sup. Ct. 1863; 1 Wal- lace, 400, SWAYNE, J., Vol. II, 147, 184 United States, Mormon Church vs. See Mormon Church vs. United Slah s. United States vs. Morris. Page U. S. Cir. Ct. Mass. 1850, 1 Curtis, 24, Curtis, J. Vol. I, 656 United States vs. Morris. U. S. Cir. Ct. Dist. Col. 1895; 23 Wash. Law. Rep. 745, Hagner, J.; Vol. II, 194 United States, Morris vs. See Morris vs. United States. United States, Morton vs. See United States vs. Sandoval. United States vs. The Nancy. U. S. Cir. Ct. Peiiua. 1814; 3 Washington C. C. R., Wash- ington. J., Vol. I, 538, 540 United States vs. Nash (alias Robins). U. S. Dist. Ct. So. Car. 179'J; Bee's Admr., 266; Fed. Cas. 16,175, Bee, J., Vol. II, 80, 105, 2.57, 258 United States vs. Navarre. U. S. Sup. Ct. 1899; 173 U. S. 77, McKenna. J. (nffirming Navarre vs. United States, U. S. Court of Claims, 1898, 3*Ct. of Clms. 235), Vol. II, 223 United Stales, Navarre vs. See Navarre vs. United States. Uuited States v. Nelson. U. S. Dist. Ct. Alaska, 1887; 29 Fed. Rep. 202, Dawson, J., affirmed, sub nomine Nelson vs. United States; U. S. Cir. Ct. 1887; 30 Fed. Rep. 112, Deady, J., Vol. I, 553 United States, Nelson vs. See Nelson vs. United States. United States, New Orleansys. See Nell) Orleans vs. United Stales. United States vs. New York Indians. U. S. Su]!. Ct. 1899; 173 U. S. 464, Broavn, J., Vol. II, 235 United States, Neio York In- dians vs. See New York In- dians vs. United Stales. United States, Nislnmiira Ekiu vs. See Ekiu &c. vs. United Stales. United States, Nofire vs. See Nofire vs. United Stat.'s. United States vs. O'Keefe. U. S. Sup. Ct. 1870; 11 Wal- lace, 178, Davis, J., Vol. I, 550 Vol. II, 203, 295, 299 United States vs. Old Set- tlers. U. S. Sup. ( t. 18i)3; 148 U. S, 427, Fuller, Ch. J., Vol. II, 235 United States vs. Osborne. TABLE OF CASES. XCV Page U. S. Dist. Ct. Oregon, 1880; 6 Sawyer, 406, Deady, J., Vol. I, 643, 557, 562 Vol. II, 174 Uuited States vs. Palmer. U. S. Sup. Ct. 1818; 3 Wheaton, 610, Mahsuali., Ch. J., Vol. I, 537, 544 Vol. II, 362 United States, Pam-to-pee vs. See Pam-to-pee vs. United States. United States vs. Patten. U. S. Cir. Ct. Maine, 1874; 1 Holmes, 421, Shepley, J., Vol. I, 549 United States, Paulinson vs. See C alder a Cases. United States vs. Payne. U. S. Cir. Ct. Arkansas, 1881; 2 McCrary, 289, Pabkek, J., Vol. II, 232 United States, Peabody vs. See Peabody vs. United States. United States vs. Pena. U. S. Sup. Ct. 1899; 175 U. S. 500, Bkewer, J., Vol. II, 194 United States vs. Percheman. U. S. Sup. Ct. 1833; 7 Peters, 51, Marshall, Ch. J., Vol. I, 538, 553, 555, 559 Vol. II, 147, 153, 162. Iti6, 178, 186 United States vs. Pillerin. U. S. Sup. Ct. 1851; 13 How- ard, 9, Taney, Ch. J., Vol. II, 194 United States, Potawatamie Indians vs. See Pam-to-pee vs. United States. United States vs. Pridg-eon. U. S. Sup. Ct. 1894; 153 U.S. 48, Jackson, J., Vol. II, 231 United States vs. Quiinby. U. S. Sup. Ct. 186G; 4 Wal- lace, 408, Nelson, J., Vol. II, 71 United States, Quock Ting vs. See Quock Ting vs. United States. United States vs. Qiiong Woo (Chinese Laundry cases). U. S. Cir. Ct. Cala. 1882; also sub nomine, lu re Quong Woo. 13 Fed. Rep. 2:i'J and 7 Savryer, 526, Field, J., Vol. TI, 28, 51 United States vs. Rauscher. U. S. Sup. ct. 1886; 119 U. S. 407, Miller, J., Vol. I, 544, 552 553, 556, 559, 560 Page Vol. II, 84, 123, 145, 268, 272, 273 274, 275, 277, 361 United States, Ravesies vs. Bavesies vs. United States. United States vs. Realty Co. U. S. Sup. Ct. 1896; 163 U. S. 427, Peckham, ,J., Vol. II, 299 United States vs. Repentigny. U. S. Sup. Ct. 1866; 5 Wal- lace, 211, Nelson, J., Vol. I, 5.38 551, 553, 555, 558, 559 Vol. II, 147, 166, 167, 176, 188 United States vs. Reynes. U. S. Sup. Ct. 1850; 9 Howard, 127, Daniel, J., Vol. I, .538, 544 553, 555, 559, 561 Vol. II, 128, 140, 166, 362 United States, Reynolds vs. See Reynolds vs. United States. United States vs. Rhodes. U. S. Cir. Ct. Kentucky, 1866; 1 Abb. U. S. Kep. 28, Sv(rAYNE, J., Vol. I, 558 United States vs. Rice (The Castine Case). U. S. Sup. Ct. 1819; 4 Wheaton, 246, Story, J., Vol. I, 138, 171, 172 190, 470, 474, 547, 551, 555 United States, Rio Arriba Land &c. Co. vs. See Rio Arriba &c. Co. vs. United States. Uuited States vs. Rio Grande Dam & Irrig-atiou Co. U. S. Sup. Ct. 1898; 174 IT. S. 690, Bbewer, J., Vol. II, 144 United States vs. Ritchie. U. S. Sup. Ct. 1854; 17 How- ard, 525, Nelson, J., Vol. II, 169, 232 United States, Roberts vs. See Roberts vs. United States. United States vs. Rodders. U. S. Dist. Ct. Arkansas, 1885; 23 Fed. Rep. 658, Parker, J., Vol. II, 230 United States vs. Rodders. U. S. Sup. Ct. 1893; 150 U. S. 249, Field, J., Vol. II, 317 United States vs. Rog'ers. U. S. Sup. Ct. 1846; 4 How- ard, 567, Taney, Ch. J., Vol. I, 558, 559, 562 Vol. II, 173. 215, 226, 231 United States vs. Rose. U. S. Sup. Ct. 1859; 23 Howard, 262, Campbell, J., Vol. II, 184 United States vs. Roselius. U. S. Sup. Ct. 1853; 15 How- ard, 31, Cateon, J., and 15 XCVl TABLE OF CASES. Page Howard, 36 Taney, Cb. J., Vol. 11, 184 United Statei^, Boss vs. See UonK vs. United States. United States vs. Sandoval (also Morton vs. United States). U.S. Sup. Ct. 1897; 1(37 U. S. 278, Fuller, Ch. J., Vol. II, 181 United States vs. Santa F^. U. S. Sup. Ct. 1897; 105 U. S. 67.-), Whitk, J., Vol. II, 181 United States vs. Schooner Pi'???y. U. S. Sup. ct. 1801; 1 C'r.iiich, 103, Marshall, Ch. J., Vol. I, 470 Vol. II, 83, 146, 148, 361, 402 United States, Sherman vs. See Sherman vs. United States. United States vs. Sibhald. U. S. Sup. Ct. 1836; 10 Peters, 313, Baldwin, J., Vol. II, 194 United States, Smith vs. Same as Soulard vs. United States. United States, Smith {Faiuous) vs. See Fai7ious Smith vs. United Statea. United States. Snoio vs. See Snow vs. United States. United States, Soulardvs. See Soulard vs. Uiiited States. United States, Stearns vs. See Stearns vs. United States. United States vs. Sturgeon. U. S. Dist. Ct. Nevada, 1879; 6 Sawver, 29, Hillyee, J., Vol. li, 231 United States, Sun Mutual Ins. Co. vs. See Caldera Cases. United States vs. Sunol. U. S. Dist. Ct. Cnla. 18.5.5; Fed. Cas. 16,421, Hoffman, J., Vol. II, 232 United States vs. Tlie James G. Swan. U. S. Uist. Ct. Washington, 1892; 50 Fed. Pep. 108, Hakdford, J., Vol. I. 557 United States, Taber vs. See Taber vs. United States. United States vs. Taylor. Sup. Ct. Washington Ter. 1887: 3 Wash. Ter. Rep. 88, Hoyt, J., Vol. II. 218 United States vs. Texas. U. S. Sup. Ct. 1892; 143 U. S. 621; and 1896. 162 U. S. 1, Harlan. J., Vol. I, 560 United States, Thingvalla Line Page vs. See Thingvalla Line vs. United States. United States vs. Tliomas. U. S. Sup. Ct. 1894; 151 U. S. 577, FiKLD, J., Vol. II, 230 United States, 'lltomas vs. See Thomas vs. United States. United States v. Tobacco Factory. U. S. Cir. Ct. Ar- kansas, 1871; 1 Dillon, 264, Caldwell, J., Vol. I, 560, 562 United States vs. 2000 Cases of Rifles. See Rata, The. United States vs. Ullman. U. S. Dist. Ct. E. D. N. Y. 1871; 4 Benedict, 547, Blatch- FORD, J., Vol. I, 547 United States vs. Union Pac. R. R. Co. U. S. Sup. Ct. 1875; 9i U. S. 72, Davis, J., Vol. II, 4, 547 United States, Volk vs. See Volk vs. United States. United States vs. Vowell. U. S. Sup. Ct. 1810; 5 Cranch, .368, Marshall, Ch. J., Vol. I, 571 United States, Wan Shing vs. Wan Shing vs. Ignited States. United States vs. Watts. U. S. Dist. Cr. Cala. 1882; 8 Sawyer, 370, Hoffman, J., Vol. II, 271, 273 United States vs. Warr. U. S. Dist. Ct. S. D. N. y. 1845; Fed. Cas. 16,644, Morton, Comm'r, Vol. II, 267 United States vs. W'eed. U. S. Sup. Ct. 1866; • 5 Wallace, 62, Miller, J., Vol. I. 548 United States vs. Weld. U. S. Sup. Ct. 1888; 127 U. S. 51, Lamar, J., Vol. II, 289, 292. 299 301, 361 United States, Westmoreland vs. See Westmoreland vs. United States. United States, Western Chero- kee Indians \s. See Western Cherokee Indians vs. United States. United States vs. Wiggles- worth. U. S. Cir. Ct. Mass. 1842; 2 Story, 369, Story. J., Vol. I, 548 United States vs. Wilson. U. S. Sup. Ct. 1861; 1 Black, 267, Nelson, J., Vol. II. 221, 232 United States ex rel. White, Bayard vs. See Bayard vs. TABLE OF CASES. XCVU Page United States ex rel. White. United States, Whitelaw vs. See Whitelaw vs. United States. United States, Wilber vs. See Caldera Cases. United States, Williams vs. See Williams vs. United States. UiiitedSlatesvs. Winans. U. S. Cir. Ct. Washin-itoii, 189G; 73 Fed. liep. 72, Handfobd, J., Vol. II, 218 United States vs. Wong- Kim Ark. (Chinese Citiz.Miship case.) U. S. Sup. Cc. 1898; 169 U. S. 649, Gray, J. Vol. I 552 558 Vol. II, 109-113, 116, 541,' 543 United States, Wong Wing vs. See Wong Wing vs. United States. United States vs. Yellow Sun. U. S. Cir. Ct. Nebraska, 1870, 1 Dillon, 271, Dillon, J., Vol. II, 231 United States vs. Yong- Yew. U. S. Dist, Ct. Missouri, 1897; 83 Fed. Rep, 832, Adams, J., Vol. II, 118, 259 United States vs. Yorba. U. S. Sup. Ct. 1863; 1 Wallace, 412; Field, J., Vol. I, 537, 544 Vol. II, 146, 362 Uriarte, De, Castro vs. See Castro vs. De Uriarte, Utali Jury Case. See Ameri- can Pub. Co. vs. Fisher. Utali M. & Mfg. Co. vs. Dick, ert & M. Sulphur Co. Sup. Ct. Utah, 1889; 6 Utah, 183, JUDD, J. Vol. II, 78 Utah & Northern Ry. Co. vs. Fisher. U. S. Sup. Ct. 1885; 116 U. S. 28, Field, J., Vol. II, 225 Utah, Thompson vs. See Thompson vs. Utah. Valandighani, Ex parte. U. S. Cir. Ct. Ohio, 1863; Fed. Cas. 16,816 ( pamphlet, Riekey & Carroll, Cincinnati), Leav- ITT, J., Vol. I, 551, 556 Talk vs. United States. U. S. Ct. of Claims, 1894; 29 Ct. of Clms. C2, Richardson, Ch, J., Vol. II, 223 Van Aernam, Ex parte. U. S. Cir. Ct. S. D. N. Y. 1854; 3 G Page Blatchf. 160; Fed. Cas. 16,824, Betts, .J., Vol. II, 267 Yau Brocklin vs. State of Tennessee. U. S. Sup. Ct. 18813; 117 U. S. 151, GRAY, J., Vol. I, 336 Yance vs. Yandercook Co. U. S. Sup. Ct. 1898; 170 U. S. 438, White, J., Vol. I, 543, 547 Vanderbiit Yacht Case. See Conqueror, The. Va7idercook Co., Vance \s. See Vance vs. Vandercook. Vanderpool, State {Ohio) vs. See State vs. Vanderpool, Yaiidervelpen, In re. U. S. Cir. Cc. S. D. N. Y. 1877; 14 Blatchford, 137; Fed. Cas. 16,844, Johnson, J., Vol. II, 261 Yan Hoven, Ex parte. U. S. Cir. Ct. Miuu. 1876; 4 Dillon, 412; Fed. Cas. 16,858, Nelson, J.; and 4 Dillon, 415, Dil- lon, J., Vol. II, 267 Yaret vs. New York Ins. Co. N. Y. Ct. of Chan. 1839; 7 Pai^e Ch. 560, Walworth, Chan., Vol. II, 298 Variag Case. See United States &c. vs. Motherwell. Vasse, Comeciys vs. See Com- egi/s vs. Vosse. Yeasie vs. Moor. U. S. Sup. Ct, 1852; 14 Howard, 568, Daniel, J., Vol. I, 549 Venus, The Brig. See Brig Venus, The. Yeremaitre, In re. U. S. Dist. Ct. S. D. N. Y. 1850; Fed. Cas. 16,915, JuDSON, J., Vol. II, 267 Vermont vs. Society for the Propagation of the Gospel. See State of Vermont vs. So- ciety osition, that, as no power or sov- ereignty existed in regard thereto in any State, it was impos- sible for any one of the States separately, or all the States col- §18. 1 United States vs. Cruikshank, U. S. Sup. Ct. 1875, 92 U. S. 542, 34 Waite, Ch. J., and also see cases cited under § 12, ante, and §§ 35-6, post. CH. I.] NATIONALITY AND SOVEREIGNTY OF THE U. S. 19 lectively, either to delegate to the newly formed government, or to reserve to themselves, elements of sovereignty which none of them possessed.^ For the same reason it cannot be §19. 1 " The states were not ' sover- eigns ' in the sense contended for by some. They did not possess the peculiar features of sovereignty— they could not make war, nor al- liances, nor treaties. Considering them as political beings they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any propositions from such sovereign. They had not even the organs of defense or offense, for they could not of themselves raise troops, nor equip vessels for war." (Mr. King, on June 19, 1787, in the Philadelphia convention, Madison papers; Elliot, Deb., V., p. 212, and see § 179 of chap. VI., post.) " Ml". Ruffin called attention in the debates of the peace convention at Washington, February, 1861, to the fact that during the Revolutionary War North Carolina had laid the foundation of a fleet, to which Orth of Indiana replied: 'There, then, we have a single instance of one of the States taking a step towards sovereignty.' None of the delegates from the Southern States could adduce another instance." Chittenden, Debates of the Peace Convention, p. 262. See also Von Hoist, vol. I., chap. 1 p. 24, where the above appears as a footnote. The complete lack on the part of any State government to perform any act which involves foreign re- lations is illustrated by the fact that no State can deliver up a fugi- tive to a foreign power except in pursuance of an act of Congress. In this regard Spear says (p. 18): " The Constitution, in its first article, and in the first clause of the tenth section, declares that ' no State shall enter into any treaty, alliance or confederation;' and, in a subsequent clause of the same section, it declares that no State shall, without the consent of Con- gress, ' enter into any agreement or compact with another State, or with a foreign power.' " The first of these prohibitions is absolute and unqualified, and com- pletely excludes all power in the States to make treaties with for- eign nations on any subject what- ever. The States, of course, can- not make extradition treaties securing the right to demand fugi- tive criminals from foreign Govern- ments, and contracting the obliga- tion to deliver them up to such Governments. " The second prohibition forbids the States, without the consent of Congress, to enter into any agree- ment or compact ' with a foreign power.' The 'agreement or com- pact,' as here referred to, is not identical with a formal treaty, which is absolutely forbidden in a previous clause of the section. The words mean any arrangement, ne- gotiation, agreement or compact with a foreign power, though it should not amount to a treaty in the strict sense; and no State, im- less with the prior consent of Con- gress, can enter into any arrange- ment, negotiation, agreement, or compact on any subject with an- other State or witli a foreign power. " The plain design of both prohi- bitions is to exclude the States 35 §19 TREATY-MAKING POWER OF THE U. S. [CH. I. said that the people, in ratifying the Constitution, reserved any portion of sovereignty in regard to such matters to the States rather than to the Central Government. from all official intercourse with foreign nations, and leave all such intercourse to be exclusively man- aged and conducted by the General Government. They cannot make a treaty, and they cannot, except with the consent of Congress, en- ter into any agreement or compact, either with each other or with a foreign power, even though it should not be a treaty in the tech- nical sense. "It follows that no State can, without such consent, agree in a specific case to deliver up a fugi- tive criminal to a foreign Govern- ment; and if it has no power to make such an agreement, then it has no power to do the thing it- self. No state can do what it has no power to agree to do. The delivery of a fugitive criminal to a foreign Government, even without a regular and formal agreement beforehand, would be essentially the same thing as doing it with such an agreement. It would, in that case, be an affirmative re- sponse to the request or demand of the foreign Government, and an agreement to do the thing re- quested or demanded, accompanied with the actual doing of it, and would be just the thing in kind which it is the purpose of the Con- stitution to forbid and prevent. "Moreover, the delivery of a fugi- tive criminal to a foreign Govern- ment by a State, even with the con- sent of Congress, supposing this consent to be obtained, would not be admissible, since the power to do so, as already shown, would be repugnant to a similar power vested 36 in the General Government. The agreement or compact with a for- eign power which, with the consent of Congress, is admissible, is evi- dently not of the kind that em- braces the extradition of fugitive criminals, since this is provided for in the powers of the General Gov- ernment, and since it is a part of the foreign intercourse of the Uni- ted States intended to be exclu- sively confided to that Government, and especially to the President in the exercise of the treaty-making power. The fraraers of the Con- stitution evidentlj' did not mean that Congress, by simply giving its consent, should be able to endow a State with any such power." In speaking of the case of Holmes vs. Jennison, Spear says on p. 21 : " This decision (of the Supreme Court of the State of Vermont) af- firmed and sustained the power of the Governor of Vermont to issue the warrant for the arrest, detention and delivery of Holmes to the Cana- dian authorities as a fugitive crimi- nal, even without any express stat- ute of the State providing therefor. It assumed that the State, through its executive authority, could make such an arrest and delivery, and that, too, notwithstanding the President of the United States for want of power had declined to act. The Governor of Vermont, in a matter of foreign intercourse, un- dertook to do what the President decided that he had no power to do ; and the Supreme Court of the State affirmed the legality of his action. "The decision being rendered by the highest court of the State of Ver- CH. I.] NATIONALITY AND SOVEREIGNTY OF THE U. S. § 20 § 20. Original nationality and sovereignty of Central Government. — In respect, therefore, to matters wholly with- mont, Holmes, uuder the twenty- fifth section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), sued out a writ of error from the Supreme Court of the United States; and tliis court, being di- vided in oi^iuiou, was not able, as a court, to render any other judg- ment than that of dismissing the case for want of jurisdiction. Holmes vs. Jennison, 14 Pet. 540. There was, consequently, no posi- tive decision by the court in regard to the specific question involved in the action of Governor Jennison, and decided by the Supreme Court of Vermont." Spear on the Law of Extradition, pp. 18-21. That a State has no power to de- liver to a foreign government, was, however, decided by the Court of Appeals of the State of New York in the case of The People ex rel. Barloio vs. Curtis, 50 N. Y. 321. The syllabus in that case says: " By the Constitution of the Uni- ted States the whole subject of foreign intercourse is committed to the Federal Government, and upon all questions relating thereto it alone can speak and act. It has the exclusive power to regulate, provide for and control the sur- render of fugitives from justice fi'om foreign countries. The pro- vision, therefore, of the Revised Statutes (1 R. S. 164, §§ 8-11, 8th ed. p. 497) providing for such sur- render, is unconstitutional, and a warrant issued by the governor in pursuance thereof is void." In this case, on the request of the Min- ister of Belgium, one Vogt charged with the crimes of murder, robbery and arson, was about to be del ivered to the Belgian authorities, to the end that he might be taken to Brussels and there tried for his crimes. This was in 1872; there was no extradition treaty between the United States aud Belgium at that time, the President of the Uni- ted States therefore had no author- ity to deliver up fugitive criminals to the Belgian government. The Governor of New York acted under a statute, originally enacted in 1822, which provided that "the Governor may, in his discretion, deliver over to justice any person found within the State, who shall be charged with liaving committed, without the jurisdiction of the United States, any crime except treason, which by the laws of this State, if committed therein, is pun- ishable by death or by imprison- ment in the State prison." 1 R. S. of New Y^ork, 164. There is no doubt that this statute of the State of New York authorized the act of the Governor in ordering the arrest and delivery of Vogt. Tiie only question, therefore, was whether the statute itself was consistent with the Constitution of the United States. Vogt sued out a writ of habeas corpus, returnable before Judge Curtis, of the Superior Court of the city of New Y^ork, who discharged Vogt on the ground that the stat- ute, and tlie warrant of arrest under it, were in conflict with the Consti- tution of the United States. This proceeding was reviewed and after- wards affirmed by the General Term of the Supreme Court, also by the New York Court of Appeals. See views of Justice Samuel F. Miller on State Sovereignty, quoted in section 29 of this chapter posi. 37 ^ 21 TREATY-MAKING POWER OF THE U. S. [CH. I. out the jurisdiction of any State the National Government was created by the original joinder of the colonies, at a time Avhen unity of action was recognized as a prerequisite for in- depentlence, and the existence of its nationality dates from a period prior to the adoption of the Articles of Confederation. That National Government, the existence of which continued under those articles, and still continues under the Constitu- tion, is necessarily not one of exclusively delegated powers ; it undoubtedly possesses certain delegated powers, the source of which can be found in, and must necessarily be limited by, those great instruments which have, and always will, form such an important part of our organic law ; it also, however, originally possessed, as it still must possess, com- plete nationality and sovereignty in man}'' other respects in the same manner as they are possessed and can be exercised by other sovereign powers of the world. It necessarily fol- lows that this proposition relates with ev^en greater force to the treaty-making power, and to the establishment and con- duct of relations between this country and every part there- of with foreign countries than it does to almost any other existing governmental powers, because in no other respect is it so generally admitted, that the government of the United States is national in its character and scope. The Constitution recognizes the distinction between the Federal and National sources of power ; this is evidenced by the Tenth Amendment, which declares that the reservation of undelegated powers is " to the States, and to the people." The people in this respect are referred to, not onl}^ as in- habitants or citizens of the States, but also as the people of the entire country as a National unit. § 21. Residuum of Power.— This residuum of delegated power contains in itself a complete exposition of the sover- eignty of the Central Government in national affairs. It will be again referred to in the final chapter of this volume, but it requires a brief reference at this point also. As to matters affecting States in their individual capacities, all delegated power, except so far as it was reserved in the people themselves, vests in the State in the absence of specific delegation to the Central Government ; as the power of the Central Government diminishes that of the State increases, 38 CH. I.] NATIONAX.ITY AKD SOVEREIGNTY OF THE U. S. § 22 and vice versa y but full and complete sovereignty so far as the people have parted with it exists between the two gov- ernments, and there is never any loss of the whole amount of power so delegated. When, however, no State can possi- bly exert control over a matter, or exercise any jurisdiction owing to the nature of the subject-matter or to constitu- tional limitations, the entire power delegated must neces- sarily remain in, and be exercised solely by, the Central Gov- ernment ; hence it can, as it often has done, and often must do, exercise plenary power in regard to those matters, and in so doing it has been held that its power is unrestrained, except so far as it must be exercised in consonance with the fundamental principles which are intended as general securi- ties for public liberty, and subject only to those natural limi- tations which are imposed upon all sovereign powers, no matter how absolute they may be, of equity, justice and truth.i § 22. Powers reserved to States relate to internal af- fairs. — It must also be remembered that the limitations upon the Central Government are those which reserve to the States the control of matters relating to their internal affairs ; there are no express or implied limitations upon those matters which are within the purview of the national govern- ment. In fact while the treaty-making and some other powers are delegated to the Central Government in general terms, and without any specified limitations whatever, the Constitution expressly provides that " no State shall enter into any treaty, alliance or confederation ; ... or, with- out the consent of Congress, enter into any agreement or com- pact with another State or with a foreign power," ^ thus not only placing the power generally in the Central Government, but absolutely prohibiting any State from acquiring any addi- tional territory, or performing any functions of sovereignty beyond its own boundaries, except through the medium of the Central Government; unless that government therefore is completely vested with the fullest powers in these re- spects, some portion of delegated sovereignty would neces- §21. 1 See cases cited under §§ 36-40, post. §22. 1 U. S. Const. Art. I, § 10. 39 S 22 TREAT Y-JIAKING POWER OF THE U. S. [CH. sarily be lost, because no part of it would, for it could not, under the prohibitory^ clauses revert to the States individu- ally or collectively ; under such circumstances this country would have to stand before the world in the mortifying posi- tion of not having any government, State or National, able to perform tlie most necessary and far-reaching of all govern- mental functions; the one which all other, and fully sover- eign, powers are constantly performing, and in the absence of which, foreign relations could not be maintained with any dignity or satisfactory results whatever, either for the Cen- tral Government or for the States themselves.^ 2 In an opiuion delivered to Sec- retary of State Marcy, on Febru- ary 26, 1857, in regard to the right of the United States to reguhite by treaty the succession of property in States of the Union as to citizens of auotlier Country, Attorney Gen- eral Caleb Gushing says: " Suppos- ing engagement of this nature to ex- ceed the Constitutional power of the Federal Government, that with Prussia does not the less exist: it is for the consideration of reciprocal benefits actually received by us; and, if it be unconstitutional, it will remain for us, — after pleading mea culpa, mea culpa gravissima, and begging pardon for entering into stipulations which we had no power to make, — then it will only remain for us to indemnify Prussia for our past shortcomings, and to negoti- ate a release from further obliga- tion, " But can it be, is there any good reason to think, that the Federal Government has no power to make such a stipulation? It may be in- convenient, because involving con- flict with, or abrogation of, the laws of one or more of the States. Granted: but inconvenience is not unconstitutionality: question of which depends on the text of the Federal Constitution. 40 " The power, which the Constitu- tion bestows on the President, with advice and consent of the Senate, to make treaties, is not only gen- eral in terms and without any ex- press limitation, but it is accom- lianied with absolute prohibition of exercise of treaty-power by the States. That is, in the matter of foreign negotiation, the States have conferred the whole of their power, in other words, all the treaty- powers of sovereignty, on the Uni- ted States. Thus, in the present case, if the power of negotiation be not in the United States, then it exists nowhere, and one great field of international relation, of negotiation, and of ordinary public and private interest, is closed up, as well against the United States as each and every one of the States. That is not a supposition to be ac- cepted, unless it be forced upon us by considerations of overpowering cogency. Nay, it involves political impossibility. For, if one of the proper functions of sovereignty be thus utterly lost to us, then the people of the United States are but incompletely sovereign, — not sover- eign, — nor in coequality of right with other admitted sovereignties of Europe and America." CH. I.] NATIONALITY AND SOVEREIGNTY OF THE U. S. § 23 §23. Proposition supported by eminent jurists. — This broad proposition may sound paradoxical, especially when it is accompanied by the statement that we are a constitu- tionally governed country ; it is founded, however, upon opinions and decisions expressed by the ablest jurists and authorities upon constitutional law and construction which this country has ever produced, and who have been able to extend their vision beyond the bounds of a mere league of confederated semi-sovereignties, or states banded together for the sellish protection of individual interests, to the more expansive view of a great nation, exercising through a Cen- tral Government national functions, not only for internal protection and development, but far beyond the original limits, for the benefit of mankind and civilization. Those who have recently had the temerity to affirm, for example, as a legal proposition, that our government has in any way exceeded, or is exceeding, its powers either in ac- quiring or in governing, our new possessions, would do well to examine the opinions and decisions of the Supreme Court, as they have been declared by Chief Justice Marshall and Justices Story, Curtis, Field, Bradley, Harlan and Gray^ and other former and present members of that great tribunal, as well as the utterances of such statesmen as Caleb Gushing, Daniel Webster, Charles Sumner, William H. Seward and others noted no less for their prudence and conservatism than for their legal ability and political acumen ; after weigh- ing the expressed opinions of those eminent jurists and masters of political science, they may materially modify their own opinions ; their doubts may be dispelled, and they may recog- nize that there has been no excess of power exerted in the recent actions of the Government, so far as treaty-making is concerned ;^ in every instance of territorial acquisition and the subsequent government of the acquired territory, the National Government has exercised powers Avhich are only compati- Opinions of Attorneys General, vol. VIII, 411, p. 415. §23. 1 For references to utterances of these jurists consult index at end of volume. 2 For decisions of the court and the questions involved in the suits pending before the Supreme Court see §§ Gla-61/i, post ; see also § 101, chapter III, posf. 41 §25 TREATY-MAKINCr PUWEi: OF THE d". S. [CH. 1. ble with the inherent possession of complete sovereignty, and wholly incompatible with the delegated possession of incom- plete sovereignt}^, and the Supreme Court has uniformly sus- tained the action of the Government whenever it has been based upon treaty stipulations, not only as to the treaty itself, but also as to the legislation subsequently enacted in pursu- ance thereof. § 2i. National Unity expressed in preamble of Constitu- tion. — This idea of national unity is also expressed in the preamble of the Constitution, which enumerates amongst the actuating motives for its adoption, provision for the common defence, promotion of the general welfare and security of the blessings of liberty for the people of the United States, re- ferring unquestionably to the people at large in their National capacity. It must also be remembered that one of the great- est discussions in the Federal Convention was on the question whether the Constitution should be submitted for ratification to the various State legislatures, or to the people themselves, and that the latter course was adopted after an able disserta- tion upon the subject bv Mr. Madison, the details of which are referred to at greater length in the subsequent chapter of this volume which is devoted to the proceedings of the Con- stitutional Convention of 1787.^ § 25. Ratification of Amendments by States result of del- egation by People. — The reason why amendments to the Constitution can now be ratified by the legislative bodies of the States, and not necessarily by the people either directly, or through conventions specially called for the purpose, is not because the States, as such, inherently possess any power or sovereignty to amend the Constitution of the Union, but because the people themselves, by a provision in the Consti- tution, clothed the state legislatures with the power of ratify- ing amendments whenever they were proposed by a two thirds vote of both houses of Congress, provided the legis- latures of three fourths of the States accepted them; the people thus constitute the legislatures of the several States their agents, subject to the prescribed limitations for the pur- pose of ratifying such Amendments,^ § 24. I § 25. ^ See § 195 chapter Vlposi. 1 i"The Congress, whenever two 42 CH. I.] NATIONALITY AND SOVEREIGNTY OF THE U. S. § 26 § 26. Supremacy of General Goverument as to objects within its domain. — " The general government," said Chief Justice Marshall, " though limited as to its objects is supreme with respect to those objects, and this principle is a part of the Constitution.'" ^ lie also asserted that no rule of narrovr thirds of both Houses shall deem it necessary, shall propose Amend- ments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for propos- ing Amendments, which, in eitlier Case, shall be valid to all Intents and Purposes, as Part of this Con- stitution, when ratified by the Legislatures of three fourths of the several States, or by Conven- tions in three fourths thereof as the one or the other Mode of Ratifi- cation may be proposed by the Con- gress; Provided that no Amend- ment v/hich may be made prior to the Year One thousand eight hun- dred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, with- out its Consent, shall be deprived of its equal suffrage in the Senate." Article V. Constitution of United States. (The first and. fourth clauses of the Ninth Section of Article One, relating to the migration and impor- tation of, and taxation on, slaves). §26. i"The American States, as well as the American people, have be- lieved a close and firm Union to be essential to their liberty and to their happiness. They have been taught by experience, that this Union cannot exist without a gov- ernment for the whole; and they have been taught by the same ex- perience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to in- dependent States. Under the in- fluence of this opinion, and thus instructed by experience, the American people, in the conven- tions of their respective States, adopted the present constitution. " If it could be doubted, whether from its nature, it were not su- preme in all cases where it is em- powered to act, that doubt would be removed by the declaration, that ' this constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby; anything in the constitu- tion or laws of any State to the contrary notwithstanding.' " This is the authoritative lan- guage of the American people; and, if gentlemen please, of the American States. It marks, with lines too strong to be mistaken, the characteristic distinction be- tween the government of the Union, and those of the States. The gen- eral government, though limited as to its objects, is suin'eme with re- spect to those objects. This princi- ple is a part of the constitution; and if there be any who deny its necessity, none can deny its au- thority. "To this supreme government ample powei's are confided; and if it were possible to doubt the great 43 §26 TREATY-MAKING POWER OF THE U. S. [CH. I. or strict construction would be adopted as to the power of the Central Government ; when once the nail was found on which to hang the authority to act, he declared, that the nail is strong enough to hold any weight that could be suspended therefrom.^ The rule of supreme power, as laid down by the eminent Chief Justice, has been expanded rather than contracted by subsequent decisions of the Supreme Court, which has always upheld the sovereignty and nationality of our government. purposes for which they were so confided, the people of the United States have declared, that they are given ' in order to form a more per- fect union, estahlish justice, ensure dorhestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to themselves and their posterity.' " With the ample powers con- fided to this supreme government, for these interesting purposes, are connected many express and im- portant limitations on the sov- ereignty of the States, which are made for the same purposes. The powers of the Union, on the great subjects of war, peace, and com- merce, and on many others, are in themselves limitations of the sov- ereignty of the States; but in ad- dition to these, the sovereignty of the States is surrendered in many instances where the surrender can only operate to the benefit of the people, and where, perhaps, no other power is conferred on Con- gress than a conservative power to maintain the principles estab- lished in the constitution. The maintenance of these principles in their purity, is certainly among the great duties of the government. One of the instruments by which this duty may be peaceably per- formed, is the judicial department. 44 It is authorized to decide all cases of every description, arising under the constitution or laws of the United States." Cohens vs. Vn- ginia, U. S. Sup. Ct. 1821, 6 Wheaton, 264, p. 380, Mar- shall, Ch. J. 2 "This instrument (the Consti- tution) contains an enumeration of powers expressly granted by the people to their government. It has been said, that these powers ought to be construed strictly. But why ought they to be so construed ? Is there one sentence in the constitu tion which gives countenance to this rule ? In the last of the enu- merated powers, that which grants, expressly, the means for carrying all others into execution. Congress is authorized ' to make all laws which shall be necessary and proper ' for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred, nor is there one sentence in the constitu- tion, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, tlierefore, think ourselves justi- fied in adopting it." Gibbons vs. Ogden, U. S. Sup. Court 1824, 9, Wheaton, 1, p. 187, Marshall, Ch. J. CH. I.] NATIONALITY AND vSOVEREIGNTY OF THE U. S. § 27 § 27. Meaning of " The People of the United States."— These words, which occur in the preamble of the Constitu- tion, have been held by Calhoun, Tucker and other upholders of States' rights and the theory of a collection of State units instead of a single national unit, as meaning the people of the different States, and not the people of the United States as an entirety. On the other hand, those who believe in the nationality of our Government maintain that, although the Constitu- tion was adopted in separate State conventions, the people necessarily adopted such method as the only possible one under which they could act at that time. The theory of the nationalists is supported by the fact that the State legislatures had no power to accede to a confedera- tion, or to a national government, except by the consent of the people themselves, and that in suoh respect the action of the people was superior to the State governments. Chief Justice Marshall, Mr. Justice Story and others have discussed this question in their opinions, and commentaries upon the Constitution, and some of their views are collated in the footnote to this section. Chief Justice Marshall de- clared in the opinion quoted in the note that the people acted upon the Constitution in the only manner in which they could safely, effectively and wisely act upon such a subject, to wit : b}-^ assembling in convention. Continuing he declared that while no political dreamer Avas ever wild enough to think of breaking down the lines which separated the States, or of compounding the American people into one common mass, the measures which were adoptecl in the separate State conventions did not on that account cease to be the measures of the people themselves, or become the measures of the State governments. In fact, the Chief Justice said, that the Government of the United States proceeded directly from the people, was ordained and established in the name of the people for the purposes stated in the preamble, and that the assent of the States in their sovereign capacity was implied in calling the conventions and submitting the instrument to the people, but, he declared, " The people were at perfect liberty to accept or reject it ; their act was final ; " it did not require the affirmance and could not be negatived bv the 45 § 27 TREATY-MAKING POWER OF THE U. S. [CH. I. States, and the Constitution as thus adopted, was a complete obligation and bound the State sovereignties.^ §27. 1 VIEWS OF MARSHALL AND STORY AS EXPRESSED BY GEORGE TICKNOR CURTIS. " When we turn to the views of the nature of the Constitution that have always been held and acted upon by the Supreme Court of the United States, it becomes at once apparent that they have admitted of no place for the doctrine which is implied in the idea of state resistance, or organized resistance of any kind. Beginning with the earliest judi- cial interpretations of the Constitution, and coming down to the latest, we shall find that they have been viniform and consistent. " When the Supreme Court was composed of Marshall as chief justice, Bushrod Washington, Story, and their associates, it became necessary for them to speak positively concerning the nature of the Constitution, because it was then claimed, in the particular controversy which they had to decide, that the Constitution was established by the states in their sovereign capacities. This doctrine was distinctly negatived by the court in the following terms: 'The Constitution of the United States was ordained and established, not by the states in tbeir sovereign ca- pacities, but emphatically, as the preamble of the Constitution declares, by the people of the United States. There can be no doubt that it was competent to the people to invest the government with all the powers which they might deem proper and necessary, to extend or restrain those powers according to their own good pleasure, and to give them permanent and supreme authority.' (Martin vs. Hunter, Story, J., 1 Wheaton, 304.) "A few years later. Chief Justice Marshall, speaking for the whole bench, said: 'The government of the Union is a government of the people; it emanates from tbem; its powers are granted by them, and are to be exercised on them and for their benefit. . . . The govern- ment of the Union, though limited in its powers, is supreme within its sphere of action; and its laws, wlien made in pursuance of the Consti- tution, form the supreme law of the land.' {McCidloch vs. The State of Maryland, 4 Wheaton, 316. ) "Did Story, in referring to the preamble of the Constitution, or did Marshall, in speaking of the people, mean that the Constitution was or- dained and established by the people of the United States regarded as a nation? It is quite apparent that the preamble, in using the words ' We, the people of the United States ... do ordain and establish this Constitution for the United States of America,' meant that tlie people of the several states do this great political act. It is, too, made certain that the very eminent jurists and magistrates, whose language I am now considering, did not regard the Constitution as ordained and established by that mass of people of whom we commonly speak as the People of the United States when we refer to them as a nation. This is apparent from what was said by Chief Justice Marshall." Mr. Curtis then quotes a long extract from McCulloch vs. Maryland, 46 CH. I.] NATIONALITY AND SOVEREIGNTY OP THE U. S. § 28 § 28. Views of Ciiaucellor Keut and Joseph Story. — These views were held by Mr. Justice Story, wlio expressed them in in the course of which the following occurs which seems to indicate that Chief Justice Marshall considered that, while the people acted as people of the States, they did so in a manner that was superior to the governments of the States themselves. " 'In discussing this question, the counsel for the state of Maryland have deemed it of some importance in the construction of the Consti- tution, to consider that instrument, not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign, and must be exercised in subordination to the states, who alone possess supienie dominion. It would be difficult to sustain this proposition. The convention which framed the Constitu- tion was, indeed, elected by the state legislatures. But the instrument when it came from their hands was a mere proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might 'be submitted to a con- vention of delegates, chosen in each state, by the people thereof, under the recommendation of its legislature for their assent and ratification.' This mode of proceeding was adopted; and by the Convention, by Con- gress, and by the state legislatures the instrument was submitted to the people. " ' They acted upon it, in the only manner in which they can safely, effectively, and wisely on such a subject, by assembling in convention. It is true, they assembled in their several states; and where else should they have assembled ? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding tlie American people into one common mass. Of conse- quence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is 'ordained and estab- lished' in the name of the people; and is declared to be ordained 'in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.' The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. " ' It required not tlie affirmance, and could not be negatived, by the state governments. The Constitution, when thus adopted, was of com- plete obligation and bound the state sovereignties. " ' It has been said that the people had already surrendered all their powers to the state sovereignties and had nothing more to give. But surely the question whether they may resume and modify the powers granted to government does not remain to be settled in this country. 47 § 28 TREATY-MAKING POWER OF THE U. S. [CH. I. Martin vs. Hunter as quoted at length in the foot-note to the preceding section, to the etfect that " the Constitution Much more might the leijitimacy of the general government be doubted had it been created by the states. The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves. To the forma- tion of a league such as was the Confederation, the state sovereignties were certainly competent. But when, ' in order to form a more perfect union,' it was deemed necessary to change the alliance into an effective government possessing great and sovereign powers and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then (whatever may be the influence of this fact on the case), is emphatically and truly a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them and for their benefit.' " Curtis' Constitutional History of the United States, vol. IL, pp. 71-74. VIEWS OF PROFESSOR VON HOLST. "Sec. 8. The Doctrine of State Sovereignty. The premise of the ar- gument of the so-called state's-rlght school is that there never has been, either in point of fact or in point of law, one people of the United States. The argument proceeds as follows: The people of each state, without being bound in any way by the action or the non-action of the other states, decided for themselves, through their authorized representatives, whether or not they would accept the draft of the Philadelphia conven- tion. That the constitution is a work of states is, therefore, a fact which cannot be gotten rid of on the plea that the constitution begins with the words: ' We, the people of the United States.' If these words do not contain an evident falsehood, then must the phrase 'United States ' be read here as 'states united; ' but so read they say simply that the states, in order to better protect their interests, have entered into a new com- pact to regulate everything in regard to those matters as to which they wish to form one commonwealth. The political existence of the Union was not changed. The states were sovereign afterwards as well as be- fore, and they alone were sovereign because a partition of sovereignty is impossible from its very meaning. It would be to turn nature upside down if the creator were made subordinate to the creature. There was no common judge standing above the federal powers and the states. If a conflict of authority broke out between them, the decisive judgment was left to the states, that is, to each of them for itself, as to what riglits they had reserved for themselves and what powers they had given to the Union. If the federal government, in the opinion of a single state, exceeded its constitutional authority, that state was justified in declaring the particular law, so far as it came in question, to be null and void. John C. Calhoun, of South Carolina, who with great logical acute- ness developed into a complete system this so-called doctrine of null!- 48 CH. I.] NATIONALITY AND SOVEREIGNTY OF THE U. S. § 28 of the United States was ordained and established, not by the States in their sovereign capacities, but emphatically, as fication, declared that nullification was an 'eminently conservative rem- edy,' and affirmed that it, and it alone, could prevent the dissolution of the Union. The younger school of the southern state's-right men did not stand by him in this. The doctrine of nullification was constantly pushed into the background and often completely rejected, and on the other hand, again and again and more unconditionally the last conse- quences were deduced from the premises of the state's-school. Since the constitution is a compact between sovereign states, they said, the states have the power to cut loose from the Union if the compact is broken, either by the national government or by the other states, — if it changes from a means of protection and of advancement into a source of destruction and certain ruin. Sovereignty is not only indivisible, but cannot be parted with, and the states, bound only through an act of their own free will, can be bound only as long as their will does not change ; that is, as they wish to be bound. Secession is thus not a right under the constitution, that is, a constitutional right, but it is inherent in the na- ture of the states, and therefore could not possibly be given up by the adoption of the constitution. The attempt to prevent by force the se- cession of a state is not a suppression of a rebellion, but an international war. Others did not go as far, and thought they had found a middle course. They admitted that secession was a revolutionary act, but af- firmed that the federal government was not empowered to use force against the sovereign states. This was the non-coercion theory. They claimed that the sovereign states had the right of neutrality; that is, that although they had not cut loose from the Union, they were justified in standing on one side as spectators during a conflict fought out with the sword between the federal government and the seceded states. " The result of the civil war made this one of the dead and gone doc- trines of history. After its champions had appealed to the ultima ratio and had been completely conquered, it had no more political vitality. And it will never again have it. The victorious north did not even con- sider it necessary to guard itself against the possibility of the revival of this doctrine by inserting in the constitution a new express declaration against it. The opposite doctrine is thus unquestionably valid consti- tutional law to-day, whatever one may think on the question as to what oriyUialhj was constitutional law. There is no need here of any further critical examination of the doctrine of state sovereignty. This is in- volved in the statement of the opposite doctrine, which is the constitu- tional law of to-day. " Sec. 9. The People of the United States of course did not act as one uniform whole when they gave themselves this constitution. The peo- ple, that is, the part of the population of each state endowed with full political rights, acted for themselves, and had absolute freedom of de- cision. They could accept the draft of the Philadelphia convention through their authorized representatives, or they could reject it, and therewith cut loose from the Union, if the projected organization of the 4 49 § 28 TREATY-MAKING POWER OF THE U. S. [CH, I. the preamble of the Constitution declares ' by the people of the United States.' " ^ Chancellor Kent, in his Lectures on the Government and Constitutional Jurisprudence, which forms the second part §28. ^Martin vs. Hunter, U. S. Sup. Ct. 18, 1816, 1 Wheaton, 304, p. 324, Stoky, J. See note 3 to preceding section and also see chap. V. § 138, et seq. latter were accomplished. But their ratification did not make the draft a constitution. Their ratification was simply a declaration, binding in law, that if the people of at least eight other states came to the same conclusion, the organization of the Union should therewith become an accomplished fact; so that, for the states concerned, this draft should be good as a constitution given by the people of the United States to the United States. Only by and through the choice of its own people did each state become a constituent member of the Union. This, how- ever, did not happen through an act of will of any single state, but the Philadelphia draft first became a constitution by the equal and co- operating consent of the people of nine states, and the states which rati- fied it afterwards evidently acquired by their ratification exactly the same legal status in the Union. Chief Justice Cliase was unquestionably right when he said that ' the Union of the states never was a purely arti- ficial and arbitrary relation.' This fact, however, did not settle the mat- ter at issue. Whether the states were or were not sovereign from the time of the declaration of independence, by common consent every one of them decided as a sovereign iipon the adoption of the constitution, that is, upon its own entrance into the Union. On the other hand, what- ever their legal status in the confederation and their political nature up to this time might have been, they were not sovereign by common con- sent, that is, according to the constitution, as members of the new Union. The Philadelphia convention began its labor by the adoption of a resolution which declared ' that a, national government ought to be established, consisting of a supreme legislative, executive and judiciary.' If a state adopted the draft, its people thereby declared that they, as far and as widely as this draft provided, should be fused with the peo- ple of the other states into one people of the United States; and by the concurrent decision of all, this declaration, put in this way, was placed at the beginning of the constitution, so that this proclaimed itself as the work of this one people of the United States. " Sec. 10. The Constitution is not a compact between the states, but it is, as it declares itself to be, a constitution, and in truth, the consti- tution of the United States, that is, of the Union, of the commonwealth formed out of the states. Therefore, it is unconditionally binding, as well for the whole people as for the states as such. No room for doubt is left, for the second section of the sixth article reads: 'This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, 50 CH. I.] NATIONALITY AND SOVEREIGNTY OF THE U. S. § 28 of his Commentaries, sa3's in regard to this element of na- tionality : " The Government of the United States was erected by the free voice and joint will of the people of America, for their common defence and general welfare. Its powers apply to those great interests which relate to this country in its na- tional capacity, and which depend for their stability and pro- tection on the consolidation of the Union, It is clothed with the principal attributes of political sovereignty, and it is justly deemed the guardian of our best rights, the source of our highest civil and political duties, and the sure means of national greatness. The constitution and jurisprudence of the United States deserve the most accurate examination ; and an historical view of the rise and progress of the Union, and of the establishment of the present Constitution, as the necessary fruit of it, will tend to show the genius and value of the government, and prepare the mind of the student for an investigation of its powers. " The association of the American people into one body politic, took place while they were colonies of the British empire, and owed allegiance to the British crown. That the union of this country was essential to its safety, its prosperity, and its greatness had been generally known, and frequently avowed long before the late revolution, or the claims of the British Parliament which produced it."^ 2 Kent's Comra. (14th ed.), Lecture X., p. 202. and the judges in every state sliall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.' The constitution is thus the law, and, moreover, the supreme law of the land. The constitutions of tlie separate states are their fundamental laws only in regard to tliose matters which are not submitted by the federal con- stitution to federal authority. This provision makes the constitution an integral part of the constitution of each state. If there is a conflict between them, then the provision of the state constitution opposed to the federal constitution is ipso facto null and void. All judges, and therefore, evidently, all other state officers, and all citizens of the state, are absolutely bound down to this fundamental principle. He who seeks to overthrow it lays hands on the fundamental law of the land. The federal government, which is bound to give the constitution life and being by law, is therefore not only empowered but directed to break down any opposition; — if possible, by the ordinary and peaceful powers of the state as provided by the constitution, but in case of need, by 51 § 29 TREATY-MAKING POWER OF THE U. S. [CH. I. § 20. Samuel F. Miller's views. — One of the strongest expositions ol" tlie completeness of the sovereignty of the United States is found in Justice Samuel F. Miller's " Lec- tures on the Constitution," which have been annotated and published since his death by Mr. J. C Bancroft Davis. This volume is recognized as a text-book of high authority on the interpretation of the Constitution ; and justly so, as the au- thor was often called upon judicially to construe it while he was a member of the Supreme Court, and the annotator has had the greatest opportunity of studying that instru- ment, and the interpretation thereof by the Supreme Court, during his term as its reporter, which has extended over a period represented by more than seventy volumes of the re- ports, and during which time he has prepared the headnotes of nearlv every important decision on constitutional ques- tions. In the notes to Lecture I. it is stated that, after the fall of British sovereignty, the broad functions of general government were assumed by the Continental Congress and exercised without question, even before the adoption of the Federal Constitution or the Articles of Confederation ; that this state of facts existed while the Constitution was being framed, and continued after its adoption. As to these great natural powers of sovereignty, the notes say : " They were never enjoyed or exercised by the States separately, and, con- sequently, as an historic fact, independently of theory, could not have been retained when the States conferred upon the General Government the other enumerated powers." In speaking of the acceptance of the IS^orthwest Territory, the declaration is made that the " sovereignty over it was vested in the United States as one undivided and independ- ent nation. The simple truth is, the United States existed as a sovereign power from the necessities of the emergency." ^ In 1867 Mr. Justice Miller pronounced the opinion of the Court in a case in which it was decided that no State had the right to tax railroad and stage companies for passengers carried out of the State, or for the privilege of passing through §29. ^Miller's Lectures on the Constitution, pp. 38-58. force." The Constitutional Law of the United States by Dr. H. Von Hoist, §§8-10, pp. 39-44. 52 CH. I.] NATIONALITY AND SOVEREIGNTY OF THE U. S. § 30 the State. He declined to concede that the question could be determined by the commerce clause of the Constitution but held that the tax was void because it interfered with National rights of the people of the United States.^ But al- though he was an ardent upholder of the sovereign powers of the National Government, Mr. Justice Miller never lost sight of the extensive powers of the States, or of the boundary line between Federal or National and State jurisdiction, as was evidenced by his far-reaching opinion in the Slaughter- house cases which will be referred to at length hereafter.^ §30. JusticeFielcrsOpinioii.— In 1889, Mr. Justice Field,' after quoting these prior declarations of the court, declared that, " the United States formed for many and for important '^ " The people of these Uuited States constitute one nation. They have a government in which all of them are deeply interested. This government has necessarily a cap- ital established by law, where its principal operations are con- ducted. Here sits its legislature, composed of senators and repre- sentatives from the States and from the people of the States. Here resides the President, directing through thousands of agents, the execution of the laws over all this vast country. Here is the seat of the supreme judicial power of the nation, to which all citizens have a right to resort to claim justice at its hands. Here are the great execu- tive departments, administering the offices of the mails, of the public lands, of the collectiim and distribution of the public revenues, and of our foreign relations. These are all established and conducted under the admitted powers of the Federal government. That govern- ment has a right to call to this point any or all of its citizens to aid in its service, as members of the Congress, of the courts, of the executive departments, and to fill all its other offices; and this right cannot be made to depend upon the pleasure of a State over whose territory they must pass to reach the point wherein these services must be rendered. The govern- ment, also, has its offices of second- ary importance in all other parts of the country. On the sea-coasts and on the rivers it has its ports of entry. In the interior it has its land offices, its revenue offices, and its sub-treasuries. In all these it demands the services of its citizens, and is entitled to bring them to those points from all quarters of the nation, and no power can exist in a State to obstruct this right that would not enable it to defeat tlie purposes for which the govern- ment was established." Crandall vs. Nevada, U. S. Sup. Ct. 1867, 6 Wallace, 3.5, p. 4;], Miller, J. 3 The Slaughter House Cases, U. S. Sup. Ct. 1872, 10 Wallace, 30, MiL- LKR, J., and see § 357, Chapter XI. Vol. II, pp. 52, et seq. §30. ^ Chae Chan Ping vs. United States, U. S. Sup. Ct. 1889, 130 U. S. 581, p. 604, Field, J. 53 § 31 TREATY-MAKING POWER OF THE U. S. [CH. 1. purposes a single nation." Continuing, that gifted jurist, who longer than any other justice of the Supreme Court, occupied a seat upon its bench, re-stated as the rule of the Court the views expressed b}'^ Chief Justice Marshall sixty- eight years before as follows : ■•' " In war, we are one people. In making peace we are one people. In all commercial reg- ulations, we are one and the same people. In many other respects the American people are one, and the government which is alone capable of controlling and managing their interests in all these respects is the government of the Union. It is their government, and in that character they have no other. America has chosen to be, in many respects and to many purposes, a nation ; and for all these purposes her gov- ernment is complete. To all these objects it is competent. The people have declared, that in the exercise of all powers given for these objects, it is supreme. It can, then, in effect- ing these objects, legitimately control all individuals or gov- ernments within the American territory."^ There is a significance in the use of the word " American " throughout this declaration of unity, for by that name the people of this country are essentially known in their national, as distinguished from their federal, capacity. § 31. Views of Justices Gray and Bradley. — The same rule was reaffirmed in 1893 by Mr. Justice Gray, who, reiter- ating statements made by Mr, Justice Bradley,^ expressed the views of the court as follows : " The United States is not only a government, but a national government, and the only government in this country that has the character of nationality^ It is vested with power over all the foreign relations of the country, war, peace and negotiations, and intercourse with other nations, all of which are forbidden to the State governments — for local interests the several states of our Union exist, but for international relations, with for- 2 Cohens vs. Virginia, U. S. Sup. Ct. 1821, 6 Wheaton, 264, p. 413, Marshall, Ch. J. 3 See also opinion of Justice Field, sustaining the jurisdiction of United States Consular Courts in foreign countries: In re Ross, U. S. Sup. Ct. 1891, 140 U. S. 453, 64 and referred to at length §379, chapter XII. and §§ 448, 453, chapter XV, Vol. II. §31. ^ Knox vs. Lee, {Legal-tender cases) U. S. Sup. Ct. 1870, 12 Wal- lace, 457, p. 455, Bbadlet, J. CH. I.] NATIONALITY AND SOVEREIGNTY OF THE U. S. § 31 eign powers we are but one people, one nation, one power.^ . . . The United States are a sovereign and independ- ent nation, and are vested by the Constitution with the entire control of international relations, and with all the power of government necessary to maintain their control and to make it effective. The only government in this country which other governments recognize, or treat with, is the government of the Union. The only American flag known throughout the world is the flag of the United States. The Constitution speaks with no uncertain sound upon this subject." ^ Mr, Justice Gray has also expressed the opinion of the Supreme Court as to the power of the United States to exer- cise the natural functions of sovereignty not referred to expressly in the Constitution, but which are exercisable be- cause it is a nation, and its Government must, therefore, be a sovereign power endowed with every element of nationality and sovereignty.'* Judge Gray's opinion in the Fong Yue Ting case was re- ferred to in a speech recently made by Senator O. H. Piatt, of Connecticut, an extract from which is quoted in the notes.^ 2 Following Ghae Chan Ping vs. United States, U. S. Sup. Ct. 1889, 130 U. S. 581, p. 606, Field, J. ^Fong Yue Ting vs. United States, U. S. Sup. Ct. 1893, 149 U. S, 698, pp. 705-707, Gray, J. * Nishimura Ekiu vs. United States, U. S. Sup. Ct. 1891, 142 U. S. 651, Gray, J. Jones vs. United States, U. S. Sup. Ct. 1890, 137 U. S. 202, Gray, J. 5 December 19, 1898 ( Cong. Rec- ord, p. 288, et. seq., and see numer- ous authorities referred to), after quoting from Judge Gray's opinion. Senator Piatt continued in regard to the nationality of the United States as follows: "The doctrine was denied by Hayne. It was triumphantly as- serted by Webster in his great de- bate in which he first made it plaia to the American people that the United States lacked no element of nationality. It was denied in the nullification acts. It was triumph- antly asserted by Jackson when he threatened to hang John C. Cal- houn, and so cowed the incipient rebellion. It was denied in the ordinances of secession ; but it was again gloriously asserted by Abraham Lincoln when he issued his call for 75,000 volunteer troops to preserve the Nation, and the peo- ple gloriously responded. It has been written in the books. It has been written in the published ut- terances of statesmen from the time when the people of the States made our Constitution down to the present time. "But Mr. President, it has been otherwise written. It has beeo 55 § 32 TREATY-MAKING POWER OF THE U. S. [CH. I. § 32. Navassa Islands Case. — The ownership by the United States of the Kavassa and other Guano Islands, over ■which it exercises governmental control, rests exclusively upon discovery and occupation and acts done in pursuance of, and in conformity with, the acts of Congress passed in regard to Guano Islands.^ These acts, in some respects, are who lost husbands, of the mothers who lost children, of the children who lost fathers. It is too late to deny it, Mr. President; it is time to believe in it with a living, sav- ing faith, from which all doubt is eradicated." written in the blood which deluged the battletields of the Civil War for four long years. It has been written with the sword upon the heart of every true American citi- zen. It has been written on the mourning weeds of the widows §32. 1 TITLE LXXII. EEVISED STATUTES OF UNITED STATES — GUANO ISLANDS. "Sec. 5570. Claim of United States to islands. Whenever any citizen of the United States discovers a deposit of guano on any island, rock, or key, not within the lawful jurisdiction of any other government, and not occupied by the citizens of any other government, and takes peace- able possession there(^f, and occupies the same, such island, rock, or key may, at the discretion of the President, be considered as appertain- ing to the United States. (18 Aug. 1856, c. 164, s. 1, v. 11, p. 119.) "Sec. 5571. Notice of discovery, and proofs to be furnished. The dis- coverer shall, as soon as practicable, give notice, verified by affidavit, to the Department of State, of such discovery, occupation, and possession, describing the island, rock, or key, and the latitude and longitude there- of, as near as may be, and showing that such possession was taken in the name of the United States; and shall furnish satisfactory evidence to the State Department that such island, rock, or key was not, at the time of the discovery thereof, or of the taking possession and occupation thereof by the claimants, in the possession or occupation of any other government or of the citizens of any other government, before the same shall be considered as appertaining to the United States. "Sec. 5572. Comi^letion of proof in case of death of discoverer. If the discoverer dies before perfecting proof of discovery or fully comply- ing with the provisions of the preceding section, his widow, heir, execu- tor, or administrator, shall be entitled to the benefits of such discov- ery, upon complying with the provisions of this Title ; but nothing herein shall be held to impair any rights of discovery or any assignment by a discoverer heretofore recognized by the United States. (2 April, 1872, 0. 81, s. 1, V. 17, p. 48.) " Sec. 5573. Exclusive privileges of discoverer. The discoverer, or his assigns, being citizens of the United .States, may be allowed, at the pleas- ure of Congress, the exclusive right of occupying such island, rocks, or 56 CH. I.] NATIONALITY AND SOVEREIGNTY OF THE U. S. § 32 apparently repugnant to constitutional prohibitions and lim- itations ; arbitrary rules and regulations, made for the gov- keys, for the purpose of obtaining guano, and of selling and delivering the same to citizens of the United States, to be used therein, and may be allowed to charge and receive for every ton thereof delivered alongside a vessel, in proper tubs, within reach of ship's tackle, a sum not ex- ceeding eight dollars per ton for the best quality, or four dollars for every ton taken while in its native place of deposit. ( 18 Aug. 1856, c. 1G4, s. 2, V. 11, p. 119.) " Sec. 5574. Restrictions upon exportation. No guano shall be taken from any such island, rock, or key, except for the use of the citizens of the United States or of persons resident therein. The discoverer, or his widow, heir, executor, administrator, or assigns, shall enter into bond, in such penalty and with such sureties as may be required by the President, to deliver the guano to citizens of the United States, for the purpose of being used therein, and to none others, and at the price pre- scribed, and to provide all necessary facilities for that purpose within a time to be fixed in the bond; and any breach of the provisions thereof shall be deemed a forfeiture of all rights accruing under and by virtue of this Title. This section shall, however, be suspended in relation to all persons who have complied with the provisions of this Title, for five years from and after the fourteenth day of July, eighteen hundred and seventy-two. (28 July, 1866, c. 298, s. 3, v. 14, p. 328. 2 April, 1872, c. 81, s. 1, V. 17, p. 48.) " Sec. 5575. Regulation of guano trade. The introduction of guano from such islands, rocks, or keys, shall be regulated as in the coasting- trade between different parts of the United States, and the same laws shall govern the vessels concerned therein. (18 Aug. 1856, c. 164, s. 3, V. 11, p. 120.) " Sec. 5576. Criminal jurisdiction. All acts done, and offenses or crimes committed, on any such island, rock, or key, by persons who may land thereon, or in the waters adjacent thereto, shall be deemed committed on the high seas, on board a merchantship or vessel belong- ing to the United States; and shall be punished according to the laws of the United States relating to such ships or vessels and offenses on the high seas, which laws for the purpose aforesaid are extended over such islands, rocks, and keys. "Sec. 5577. Employment of land and naval forces. The President is authorized, at his discretion, to employ the land and naval forces of the United States to protect the rights of the discoverer or of his widow, heir, executor, administrator, or assigns. " Sec. 5578. Right to abandon islands. Nothing in this Title con- tained shall be construed as obliging the United States to retain posses- sion of the islands, rocks, or keys, after the guano shall have been re- moved from the same." See also the Guano Islands Acts of August 18, 1856, chapter 164; 11 U. S. Stat, at Large, 119; 28 July, 1868, c. 298, § 3, v. 14, p. 328; 2 57 § 32 TREATY-MAKING POWER OF THE U. S. [CH. I. ernraent of the islands, and for commercial intercourse there- with, so far from being uniform with those in force in the States, and other Territories of the union, are applicable only to these islands.^ Three men who had committed murder in one of these islands were brought to this country, indicted, and tried in accordance with these statutory provisions ; they were found guilty as charged, and sentenced. An appeal was taken to the Supreme Court where able counsel contended that no- where in the Constitution could be found the power of the United States either to acquire these islands, or to govern them by the arbitrary and unequal rules "vvhich had been provided for them and their inhabitants ; thus in the most solemn manner conceivable the court was called upon to determine the rights and powers of this government ; under such circumstances it was bound by the ])rinciple of Amer- ican and English jurisprudence, which is the birthright of our nation, that the benefit of the doubt must in every in- stance be given to the accused. If there had been any lack of sovereignty in the Government of the United States, in regard to the external affairs of the country the convictions could not have been sustained ; the test was the most severe April, 1872, c. 81, § 1, v. 17, p. 48, on which the above quoted sections of the Revised Statutes are founded. 2 The sovereignty and jurisdiction of the United States have attached to the territory embraced in a number of islands, under the act of Au- gust 18, 1856, as will appear from the following correspondence on file in the Treasury Department : Treasury Department, First Comptroller's Office, Washington, D. C, September 16, 1893. Hon. S, WiKE, Assistant Secretary of the Treasury. Sir: In compliance with the request contained in your letter of the 15tli instant, I have the honor to transmit herewith a list of the guano islands bonded under the act of August 18, 1856, as appears from the bonds on tile in this office up to the present date. You will observe that the list is the same as that transmitted with letter from this office, dated December 22, 1885, no additional bonds having been received since that date. Respectfully yours, R. S. BOWLEB, Comptroller. 58 CH. T.] NATIONALITY AND SOVEREIGNTY OF THE XT. S. § 32 one that could be applied, but the principles of sovereignty and nationality withstood every argument brought against them ; the judgments were aiRrmed on the ground that the United States, as a sovereign power, and possessing every element of nationality and sovereignty, had taken possession of the islands and governed them under and by virtue of the broad right, recognized by international law, of acquiring territory by discovery and occupation ; that it possessed and exercised this right in the same manner and to the same ex- tent as it is possessed, and can be exercised, by every other sovereign power, as a general attribute of sovereignty, and one which is given by the law of nations and of nature, and exercisable to the fullest extent recognized by those laws, and that it is not a merely delegated power under the Con- Inclosed is a list of about 75 guano islands, appertaining to the United States, bonded under the act of August 18, 1856, as appears from bonds on file in the office of the First Comptroller of the Treasury, Septem- ber 16, 1893, tabulated as follows: Num- ber of bond. Date of bond. Name of Island. Latitude. Longitude. CiBCULAB — Guano Islands Not Appertaining to United States. [1894.— Department No. 176.— Bureau of Navigation.] Treasury Department, Office of the Secretary, Washington, D. C, November 21, 1894. To Collectors of Ctistoms and others : At the request of the Secretary of State, the following-named "^uano- islands," specified in lists issued by this Department of guano islands appertaining to the United States, will be considered as stricken from said list, and no longer included among the guano islands bonded by the United States under the Act of August 18, 1856, viz: Arenas, Pajoras, Arenas Key, Perez, Chica, Western Triangles. S. WiKE, Assistant Secretary. [Extract from Report of Charles E. Magoun, Law Officer, Division of Insular Affairs, War Department, on legal status of islands acquired by the United States, February, 1900, and also see this report for collation of cases on nationality and sovereignty of United States and right to acquire territory.] 59 §82 TREATY-MAKING POWER OF THE U. S. [CH. I. stitution, or limited by anything contained in the enumera- tion of powers granted to the Central Government.^ § 33. Right of the United States to acquire territory. — The right of the United States to acquire territory, under its treaty-making power, and also by virtue of the power it possesses as a sovereign nation, will be the subject of a separate chapter devoted to that point in particular ; no further refer- ence, therefore, will be made to it in this chapter.^ The ex- tended reference to the acquisition, and government of the Guano Islands has been made at this point so as to bring prominently into view the regular method by which this at- tribute of sovereignt}' has been exercised and also in which it has been acknowledged by every department of the Gov- ernment.^ 3 Jones vs. United States, U. S. Sup. Ct. 1890, 137 U. S. 202, Gray, J. See also Duncan vs. Navassa Phosphate Co., U. S. Sup. Ct. 1891, 137 U. S. 647, Gray, J. (syllabus as follows) : " The right conferred by the United States, under the Guano Islands Act of August 18th, 1856, c. 164, (Rev, Stat. tit. 72,) upon the di-scoverer of a deposit of guano and his assigns, to occupy, at the pleasure of Congress, for the pur- pose of removing the guano, an island determined by the President to apjjertain to the United States, is not such an estate in land as to be subject to dovrer, notwithstand- ing the act of April 2, 1872, c. 81, (Rev. Stat, sec. .5572, ) extending the provisions of the act of 1856 ' to the widow, heirs, executors or ad- ministrators of such discoverer' if he dies before fully complying with its provisions." §33. ^Cliap. II., and see especially for Insular Cases, §§ 61a, et seq. See also § 101, chapter III. 2 On May 27, 1901, the Supreme Court decided Be Lima vs. Bidwell, 60 BoionesY?,. Bidioell, and other Insu- lar Cases, which will be reported in volume 182, United States Reports, in which the right of the United States to acquire and govern terri- tory is discussed at length. Those cases are referred to more at length in §§ 61a,-617i, pp. 117, et seq., and at other points in this volume there referred to: while the members of the Court differed among them- selves as to the status of territory when acquired, and as to the rela- tions of acquired possessions and the inhabitants thereof to States and citizens of the United States, the Court was unanimous as to the right of acquisition and that the United States is a sovereign nation, and possessed of every attribute of nationality and sovereignty. The former decisions of the Supreme Court as to the extent of congres- sional power, and of constitutional limitations thereon, over, and in re- gard to, territories which were cited in the arguments before, and opin- ions of the Court in the Insular Cases are collated in the Insular Cases Appendix at end of volume. CH. I.] NATIONALITY AND SOVEREIGNTY OF THE U. S. § 35 § 34. General consensus of opinion in support of Nation- ality of United States. — A long line of other expressions of opinion from Alexander Hamilton to date could be quoted, but the precedents referred to, together with the decisions and opinions collated in the subsequent chapters, and referred to in the footnotes, should certainly be accepted as fully an- swering every question which has ever been raised as to the completeness of the sovereignty and nationality of the Uni- ted States. It is almost inexplicable why any person or party should desire to limit those powers of the Federal Government, which are exercised exclusively in regard to matters not only wholly within its domain, but which are also wholly beyond the power or control of any State ; al- though no party, person, state or faction would be benefited by imposing such limitations, yet from the earliest period of our national history there has always been a party which for unexplained and unaccountable reasons has taken for its watchword the curtailment of national power, not only as to those matters which relate to the States, and in which the power of the State increases relatively as the power of the Central Government diminishes, but also as to matters ex- clusively within the domain of the JSTational Government and which require for their proper administration the fullest measure of nationality, sovereignty and power. § 35. Gradual development of theory of Nationality. — The theory of complete nationality and sovereignty of the United States has been gradually developed ; its evolution commences with the early decisions of Chief Justice Mar- shall, notably in the Florida or Canter case^ which will be alluded to in another chapter, in which he said that the right to acquire territory was derived from the war or treaty- making power under constitutional delegation, or as an at- tribute of sovereignty existing in the government ; he de- clared, however, that it was unnecessary at that time, to decide under which head to classify it ; its complete develop- ment is shown in the decision of Mr, Justice Gray in the Navassa Island case,^ in which he unhesitatingly and broadly §35. I Peters, 511, Marshall, Ch. J., ^American Insurance Co. vs. ipost. Canter, U. S, Sup. Ct. 1828, l' ^ Jones vs. United States, U. S. 61 §36 TEEATY-MAKING POWER OF THE U. S. [CH. I. asserted that the right of acquisition of territory was beyond doubt an attribute of the United States Government, not under constitutionally delegated power, but an attribute vested in it under the law of nations, in the same manner and to the same extent as the power is possessed by the govern- ments of other sovereign nations. § 36. Limitations by fuudamental principles.^ — Side by side with the theory of complete nationality there has also developed, as was necessary and proper, the theory that these Sup. Ct. 1890, 137 U. S. 202, Gray, J., and see § 32 and notes thereunder, ante. §36. 1 The cases referring to the limi- tation of governmental powers by the fundamental principles on which this government is based will be found in the collation of cases referred to in the arguments before, and opinions of the Supreme Court in the insular cases appendix at end of this volume, including: Bank of Columbia vs. Okely, U. S. Sup. Ct. 1819, 4 Wheaton, 235, Johnson, J.; Chicago, etc.. By. Co. vs. Tomp- kins, U. S. Sup. Ct. 1900, 176 U. S. 167, Brewer, J.; CummingsYS. Missouri, U. S. Sup. Ct.l866, 4 Wall. 277, Field, J.; Dartmouth College vs. Wood- ward, U. S. Sup. Ct. 1819,4 Wheaton, 518, Marshall, Ch. J. ; Kemmler, In re, U. S. Sup. Ct. 1890, 136 U. S. 436, Fuller, Ch. J.; Legal Tender Cases, (1) XJ. S. Sup. Ct. 1869, 8 Wall. 603, Chase, Ch. J. ; (2) 1870, 12 Wall. 457, Strong, J; (.3) 1884, 110 U. S. 421, Gray, J.; Loan Association vs. Topeka, U. S. Sup. Ct. 1874, 20 Wall. 655, Miller, J.; Lord Bishop of Natal, Privy- Council 1864, 3 Moore Priv. Coun. N. S. 115, Westbury, Lord Chan.; Marhury vs. Madison, U. S. Sup. 62 ct. 1803, 1 Cranch, 137, Mae- shall, Ch. J. ; Maxioell vs. Doio, U. S. Sup. Ct. 1900, 176 U. S. 581, Peckham, J.; Mormon Church Case, U. S. Sup. Ct. 1890, 136 U. S. 1, Bradley, J.; Murphy vs. Ramsey, U. S. Sup. Ct. 1885, 114 U. S. 15, Mat- thews, J.; Sharpless vs. The Mayor, &c., 21 Penn. St. Rep. 147, Sup. Ct. Pa., 1853, Black, J.; Slaughterhouse Cases, U. S. Sup. Ct. 1872, 16 Wall. 36, Miller, J.; Weimar vs. Bunbury, Sup. Ct. Mich.1874, 30 Mich. 201, Cooley, J. ; Tick Wo vs. Hopkins, U. S. Sup. Ct. 1886, 118 U. S. 356, Mat- thews, J. ; and see p. 369, where the court says, in holding one of the anti-Chinese ordinances of San Francisco as void under the Four- teenth Amendment, " But the fun- damental rights to life, liberty and the pursuit of happiness, consid- ered as individual possessions, are secured by those maxims of consti- tutional law which are the monu- ments showing the victorious prog- ress of the race in securing to men the blessings of civilization under the reign of just and equal laws; so that in the famous language of the Massachusetts Bill of Rights, the government of the common- wealth ' may be a government of laws and not of meru' " CH. I.] NATIONALITY AND SOVEREIGNTY OF THE U. S. § 37 natural and inherent attributes of sovereignty possessed by the Government of the United States in its National charac- ter, are limited in their exercise, not by constitutional pro- visions, but by those fundamental principles upon which the Government of the United States, and of its people, is based. This joint development of the two theories is not only per- fectly consistent, but one necessarily grows and expands with the other, and in such development each furnishes to the other mutual support and strength. § 37. Views of Ex-Presideut Harrison.* — True it is that Ex-President Harrison, in his recent utterances at Ann Arbor and in the N'orth American Review,^ declares that the theory of limitations by fundamental principles is not in accord with American constitutional history ; learned as he is, however, in constitutional and international law, for unquestionably Mr. Harrison is one of our leading author- ities upon those great branches of jurisprudence, as was evi- denced by his remarkable, and in many respects successful, argument before the Venezuelan arbitration tribunal, he evidently overlooks the fact that the doctrine of limitation by fundamental principles has been clearly enunciated and defined by the Supreme Court ; in fact that court has made it a part of the doctrine of acquisition of, and sovereignty over, the territories, which Mr. Harrison himself admits has not only been thorouglily, but properly, established as part of the constitutional law of this country. He declares that our forefathers ^vere not content with general and unwritten lim- itations, but forced into the Constitution written limitations as to the exercise of sovereignty by the ruling powers.^ In * These sections were written prior to the death of Mr. Harrison. §37. i"The Status of Annexed Terri- tory and of its Free Civilized In- habitants" by Benjamin Harrison, formerly President of the United States, North American Review, January, 1901, p. 110. 2 "For themselves, our fathers, were not content with an assur- ance of these great rights that rested wholly upon the sense of justice and benevolence of the Congress. The man whose protec- tion from wrong rests wholly upon the benevolence of another man or of a Congress, is a slave — a man without rights. Our fathers took security of the governing depart- ments they organized; and that, notwithstanding the fact that the choice of all public officers rested with the people. When a man 63 :M>Lrrv)i^ §38 TREATY-MAKING POWER OF THE U. S. [CH. I. this, however, so far as he refers to government of terri- tories, he is clearly wrong ; the decision of the Supreme Court shows that fundamental, rather than constitutional, limita- tions are frequently the only check upon congressional ac- tion. Undoubtedly, as the Supreme Court asserted in Murphy vs. Ramsay^^ complete and unlimited power is repugnant to our institutions ; but it also declared in the Mormon Church case,'* that those limitations in many instances are found, not in the Constitution, but in the fundamental principles upon Avhich our govei-nmeut is established ; these two judicial dec- larations have been repeatedly followed in later decisions of the Supreme, and other courts, of the United States, refer- ence to some of which have been collated in the next chapter. § 38. Unsoundness of Mr. Harrison's views. — Mr. Harri- son takes a very gloomy view of the results of the doctrine of fundamental principles ; in fact, he refers to it somewhat sarcastically as one of the limitations, not by principles of gov- ernment, but by heiievolence I he also seems to feel that the doctrine if accepted, necessarily implies that the only limita- tions which can be placed upon congressional action are such as may appeal to Congress in its existing mood at the time of the legislation.^ But if this doctrine of limitation is to be applied to con- gressional action in regard to those matters in which the strictly limits the powers of an agent of his own choice, and exacts a bond from him, to secure his faithfulness, he does not occupy strong ground when he insists that another person, who had no part in this selection, shall give the agent full powers without a bond. " If there is anything that is characteristic in American Con- stitutions, state and national, it is the plan of limiting the powers of all public officers and agencies. You shall do this; you may do this; you shall not do this — is the form that the schedule of powers always takes. This grew out of our experience as English colonies. 64 A government of unlimited legis- lative or executive powers is an un-American government. And, for one, I do not like to believe that the framers of the National Con- stitution and of our first State Constitutions were careful only for their own liberties." ^Murphy vs. Ramsay, U. S. Sup. Ct. 1885, 114 U. S. 15, Matthews, J. ■* Mormon Church vs. United States, U. S. Sup. Ct. 1890, 136 U. S. 1, Bk ADLEY, J. , And see extract from opinion in § 60, chapter II, post. §38. ^This also applies to the article of ex-Senator Edmunds, No. Am. Rev. Aug., 1901. CH. I.] NATIONALITY AND SOVEREIGNTY OF THE U. S. § 39 Federal Government is supreme and national, there is no more danger of proper bounds being exceeded than has ever existed in the past ; on this point we have the author- ity of Chief Justice Marshall and Mr. Justice Story that the doctrine of limitations ah inconvenienti, or the limita- tion of a general power for fear that the right to exercise it may lead to abuse, will not be considered.^ The princi- ples of broad construction of the Constitution as to the dele- gated powers conveyed in general terras must apply with equal, if not stronger force, to those powers which Congress possesses in its capacity as the single mouth-piece of, and the only medium through which, the people of the United States can speak and act as to those matters which they possess and control as a national unit. § 39. rimdainental priuciples and the first ten amend- ments. — The theiory of fundamental principles had its in- ception as early as the framing of the Constitution ; to many the adoption of the first ten amendments, commonly known as the Bill of Rights, was wholly unnecessary ; there were members of the Constitutional Convention who considered that the enumeration of certain fundamental rights would be dangerous as it might result in the exclusion, and to the derogation, of other rights equally fundamental, but which might possibly be omitted in the enumeration. The first ten amendments, however, were added in order to satisfy the wishes of those who felt that the personal rights of free- dom and liberty therein enumerated should be specifically preserved to the people. It is doubtful, however, if any one in this country con- siders that his personal rights have any greater protection by reason of the adoption of those amendments, than though they had remained as a part of the fundamental principles, upon which the whole government was based, and unex- pressed except as they are embodied in the law of the land and as they have always been recognized by the people and by the courts. 2" A power, given in general terms, is not to be restricted to particular cases merely because it may be susceptible of abuse, and 5 65 if abused may lead to mischievous consequences." 1 Story's Comm. on the Const. § 425, 5th ed. p. 324. §39 teeaty-jMakinct power of the u. s. [CH. I. The histoiy of these amendments, as it is contained in Story's Commentaries, will be found in the footnote to this section.^ * ♦For the Constitution and Amendments in fuU see pp. 519, et seq., post. §39. 1" Another class of objections urged against the Constitution was founded upon its deficiencies and omissions. It cannot be denied that some of the objections on this head were well taken, and that there was a fitness in incorporating some provision on the subject into the fundamental articles of a free government. There were others, again, which might fairly enough be left to the legislative discretion and to the natural influences of the popular voice in a republican form of government. There were others, again, so doubtful, both in principle and policy, that they might properly be excluded from any system aiming at permanence in its securities as well as its found- ations. " Among the defects which were enumerated, none attracted more attention, or were urged with more zeal, than the want of a distinct bill of rights which should recog- nize the fundamental principles of a free republican government, and the right of the people to the en- joyment of life, liberty, property, and the pursuit of happiness. It was contended that it was indis- pensable that express provision should be made for the trial by jury in civil cases, and in criminal cases upon a presentment by a grand jury only; and that all crim- inal trials should be public, and the party be confronted with the witnesses against him; that free- dom of speech and freedom of the press should be secured ; that there should be no national religion, and 66 the rights of conscience should be inviolable; that excessive bail should not be required, nor cruel and unusual punishments inflicted; that the people should have a right to bear arms; that persons con- scientiously scrupulous should not be comi^elled to bear arms; that every person should be entitled of riglit to petition for the redress of grievances; that search-warrants should not be granted without oath, nor general warrants at all ; that soldiers should not be enlisted, ex- cept for a short, limited terra, and not be quartered in time of peace upon private houses without the consent of the owners; that mutiny bills should continue in force for two years only; that causes once tried by a jury should not be re- examinable upon appeal, otherwise than according to the course of the common law; and that the powers not expressly delegated to the gen- eral government should be declared to be reserved to the States. In all these particulars the Constitution was obviously defective; and yet, it was contended, they were vital to the public security. " Besides these, there were other defects relied on, such as the want of a suitable provision for a rota- tion in office, to prevent persons enjoying it for life; the want of an executive council for the Presi- dent; the want of a provision lim- iting the duration of standing armies; the want of a clause secur- ing to the people the enjoyment of the common law; the want of security for proper elections of public officers; the want of a pro- CH. I.] NATIONALITY AND SOVEREIGNTY OF THE IJ. S. 40 § 40. Congress compared, as to powers in national mat- ters, with Parliament of Great Britain. — To the author, it seems as though Congress, being the only medium of action hibition of members of Congress holding any public offices, and of judges holding any other offices; and finally, the want of drawing a clear and direct line between the powers to be exercised by Congress and by the States. " Many of these objections found their way into the amendments, which, simultaneously with the ratification, were adopted in many of the State conventions. With the view of carrying into effect popular will, and also of disarming the op- poneats of the Constitution of all reasonable grounds of comjjlaint, Congress, at its very first session, took into consideration the amend- ments so proposed; and by a suc- cession of supplementary articles provided, in substance, a bill of rights and secured by constitutional declarations most of the other im- portant objects thus suggested. These articles (in all twelve) were submitted by Congress to the States for their ratification, and ten of them were finally ratified by the requisite number of States, and thus became incorporated into the Con- stitution. It is a curious fact, how- ever, that, although the necessity of these amendments had been urged by tiie enemies of tlie Con- stitution and denied by its friends, they encountered scarcely any other opposition in the state legis- latures than what was given by the very party which had raised the objections. The friends of the Con- stitution generally supported them upon the ground of a large public policy, to quiet jealousies and to disarm resentments. " It is perhaps due to the latter to state that they believed that some of the objections to the Constitution existed only in imagination, and that others derived their sole sup- port from an erroneous construc- tion of that instrument. In respect to a bill of rights, it was stated that several of the State constitutions contained none in form, and yet were not on that account thought objectionable. That it was not true that the Constitution of the United States did not, in the true sense of the terms, contain a bill of rights. It was emphatically found in those clauses which re- spected political rights, the guar- anty of republican forms of gov- ernment, the trial of crimes by jury, the definition of treason, the pro- hibition against bills of attainder and ex post facto laws and titles of nobility, the trial by impeachment, and the privilege of the writ of habeas corims. That a general bill of rights would be improper in a Constitution of limited powers like that of the United States, and might even be dangerous, as by containing exceptions from powers not granted it might give rise to implications of constructive power. That in a government like ours, founded by the people and man- aged by the people, and especially in one of limited authority, there was no necessity of any bill of rights; for all powers not granted were reserved, and even those granted might at will be i-esumed or altered by the people. That a bill of rights might be fit in a mon- archy, where tliere were struggles between the crown and tlio ])eoplo about prerogatives and privileges. 67 §40 TKEATY-aiAKING POWER OF THE U. S. [CH. I. in those respects, must, as to national matters committed to it, possess powers co-ordinate with those of the Parliament of Great Britain, and that the possession of such powers can- not in any way tend to produce the dangerous results pre- dicted by Mr. Harrison. It is England's boast that the Anglo-Saxon heritage of personal freedom is nowhere so thoroughl}^ protected as it is in Great Britain ; there are, however, no written limitations upon Pai'liamentary action of any kind — in fact, Parliament, being the mouthpiece of the people, is necessarily supreme. The notes to section 11 of this chapter show that the sov- ereignty of the British Constitution is lodged, as declared by Blackstone, in ParHament; Professor Cliase's note on this statement in his American edition of Blackstone's Com- mentaries, which is appended to this section, show^s the dif- ference between an act of Congress and an act of Parlia- ment as to matters which are covered by the Constitution ; ^ But here tlie government is the government of the people; all its officers are their officers, and they can exercise no right or powers but such as the people commit to them. In such a case the silence of the Con- stitution argues nothing. The trial by jury, the freedom of the press, and tlie liberty of conscience are not taken away, because they are not secured. They remain with the people among the mass of un- granted poweis, or find an appro- priate place in the laws and insti- tutions of each particular State. "Notwithstanding the force of these suggestions, candor will com- pel us to admit that, as certain fundamental rights were secured by the Constitution, there seemed to be an equal propriety in secur- ing in like manner others of equal value and importance. The trial by jury in criminal cases was se- cured; but this clause admitted of more clear definition and of auxil- iary provisions. The trial by jury in civil cases at common law was 68 as dear to the people, and afforded at least an equal protection to per- sons and property. The same re- mark may be made of several other provisions included in the amend- ments. But these will more prop- erly fall under consideration in our commentary upon that portion of the Constitution. The prompti- tude, zeal and liberality with which the friends of the Constitution sup- ported these amendments evince the good faith and sincerity of their opinions, and increase our reverence for their labors, as well as our sense of their wisdom and patriotism." 1 Story's Com. on the Cons, of the U. S. 5th ed. §§ 300 -305, pp. 217-220. See also Thorpe's Constitutional History of the United States, vol. 2, chap. VI, p. 199, el seq. §40. 1 " There is a fundamental differ- ence between the power and author- ity of the legislative branch of the Government in England and in the United States. The English Par- CH. I.] NATIONALITY AND SOVEREIGNTY OF THE U. S. § 41 the same difference cannot exist, however, as to matters which are lodged generally in the National Government or which it possesses not by delegation but as the attributes of sover- eignty of a national government. Blackstone, however, and other writers upon the fundamental law of England, trace the British Constitution, unwritten as it is, from the earliest sources, showing that personal liberty and personal rights are amply protected from legislative aggression, and that no person can be deprived of them in any manner whatsoever. Undoubtedly the Supreme Court of the United States can be entrusted with the protection of personal rights of Ameri- cans, and of the inhabitants of any territory under the juris- diction of the United States, to the same extent that the Eng- lish courts can be trusted with the similar protection of citi- zens and subjects of Great Britain. § 41. Simultaneous developuieut of nationality and limi- tations by fundamental principles of natural and healthy growth. — The simultaneous development of the two theories of complete nationality and sovereignty, and of the limita- tion of congressional action in regard to national matters by liament is not limited, as regards the scope and extent and subject- matter of legislation, by a written constitution defining and restrict- ing its powers, and its enactments therefore constitute the supreme law of the land and are absolutely binding upon the courts, which have no option but to appropriately enforce them. It is for this reason that Parliament is sometimes said to be "omnipotent." What is spoken of as the " English Consti- tution " embraces the body or sys- tem of laws, rules, principles and established usages, upon which is based the organization of the Gov- ernment, the relation of its various departments or branches to each other, and the nature of their func- tions, and in accordance with which the administration of the Government is regularly conducted. But this Constitution, based as it is upon previous acts of Parlia- ment, upon custom and tradition, is subject to change and modifica- tion by other acts of Parliament, though it is undoubtedly true, that It has, by force of precedent, and by the natural effect of ordinary usage upon the habits and ideas of people, great controlling and re- strictive power upon the course of legislation. But in the United States, legislation is uniformly con- trolled by written constitutions adopted by the people in their sovereign capacity. The United States Constitution limits and de- fines the powers of Congress, and is also binding upon the legisla- tures of the several States, so that their enactments cannot violate its provisions. The legislation of the States is also further controlled by the special Constitution which each has adopted. To the courts is com- 69 §41 TREATY-MAKING POWER OF THE U. S. [CH. I. fundamental principles, has up to the present time inured to the advantage and mutual benefit alike of the powers that govern, and of the people who are governed ; this same de- velopment will undoubtedly continue in the spirit of Anglo- Saxon liberty without danger to the personal rights of indi- viduals, or the enactment of any such grotesque legislation as is feared by the ex-President ; in this respect it must be re- membered tliat the combined action of the three departments of the American Government is always subject to the control of the people by the frequent recurrence of elections ; the re- vei'sal or repeal of congressional action alwa3"s follows when it appears that the legislation enacted is not in accord with the spirit of liberty as it is understood by the people, who must eventually be the sole judges as to whether or not the powers of sovereignty lodged in the National Government, great as they are, are being properl v exercised. ISTot until the spirit of the people changes can Congress act with the sj)irit of des- potism. If, however, the minds of the American people can ever become so perverted as to favor despotism in any form, that degeneracy will be reflected in Congress, and no consti- tutional provisions, or fundamental principles of liberty, will sufiice to prevent the enactment of legislation which will ac- cord with the popular sentiment as to those matters which are wholly within the domain of the National Government, and therefore under the control of the people themselves. No such danger exists to-day ; let us hope that it never will exist. mitted the power and duty of de- termining whether particular en- actments are in conformity with Constitutional provisions; and if it is adjudged that they are not, such laws are pronounced null and void, either in whole or in part (Civil Rights cases, 109 U. S. 3; Baldwin vs. Franks, 120 U. S. 678; Duryee vs. Mayor ofN. Y. 96 K Y. 477). This is not, however, done by the courts of their own motion, but only in the 70 course of decision of actually liti- gated causes in which the Cousti- tutiunality of the statute is essen- tially involved. But all statutes not in conflict with the provisions of the Constitution of the State or of the United States are as supreme and absolute, within their appro- priate sphere, as the acts of the Eng- lish Parliament." Chase's Black- stone {3d ed.), p. 15, note. CHAPTER II. THE NATIONALITY AND SOVEKEIUNTY OF THE UNITED STATES AS EVIDENCED BY ACQUISITION OF TERRITORY. Section 42 — Development of United States from a Confedera- tion into a Nation; recog- nition of Sovereignty. 43 — Right of sovereign powers to acquire territory. 44 — Methods of acquisition of territory. 45 — Cessions of territory to povrers other than United States. 46 — Consent of governed not re- quired under international law. 47 — The United States has never asked the consent of the inhabitants of ceded terri- tory. 48 — Impracticability of ascer- taining consent. 49 — Special instances in which obtaining consent might be practicable. 50 — Restrictions on acquisitions of territory by European powers under " balance of power " theory. 51 — Acquisitions of United States never objected to by other powers. 52 — Acquisitions of European powers prevented by Uni- ted States under Monroe Doctrine. 53 — Russia's colonization on Pa- cific coast stopped. 54 — England, Central and South America, and the Monroe Doctrine. Section 55 — Spain, Cuba, and the Monroe Doctrine. 56 — Louis Napoleon, Mexico, and the Monroe Doctrine. 57 — Germany and Samoa. 58 — Monroe Doctrine and the Peace Conference at The Hague; 1899. 59 — Opposition to territorial ex- pansion from within, and not from without. 60 — Right to acquire territory based on nationality and sovereignty. 61 — Power to govern acquired territory. The Insular cases; 1901. 61a-7t — Status of new possessions. 62 — The Mormon Church case ; Justice Bradley's opinion. 63 — Subsequent cases involving same point. 64 — Constitutional limitations; or lim'.tations by funda- mental principles. 65 — Justice Harlan's opinion. 66 — General Summary of views. 67 — Government of territories as affected by treaties of ces- sion. (J8 — Special clauses in treaty with Spain of 1898. 69 — States' rights and anti-ex- pansion. 70 — Policy of expansion and ac- quisition sustained by courts and people. 71 — Territorial expansion the Cornerstone of American prosperity. 71 § 43 TKEATY-MAKING POWER OF THE U. S. [CH. II. § 42. Development of United States from a Confedera- tion into a Nation ; recognition of Sovereignty.^We Lave already seen, in the last chapter, that the Government of the United States has developed from the mere central gov- ernment of a confederation into a great national government possessing and exercising, as to all national matters, every sovereign power which any other sovereign nation of the world possesses and exercises ; also that this nationalitj^ and sovereignty has been recognized by our own people and our own courts. It is purposed in this and the succeeding chap- ter to show that these attributes of sovereignty and nation- alty have been exercised in adding to our domain vast tracts of territory, over which the Government of the United States has extended in its national and sovereign capacities, and also that the nationality and sovereignty of the United States have been continuously recognized b}' every other sovereign nation. § 43. Right of sovereign powers to acqnire territory. — The right of sovereign powers to cede territory to, and to acquire territory from, other sovereign powers, with the ac- companying transfer of sovereignty thereover, is one of the elementary principles of international law. It is essential, however, that the contracting powers should be fully sover- eign in order to act either as transferrer or transferee.^ §43. 1 TRANSFER OF TERRITORY; VIEWS OF PtjBLICISTS. PROFESSOR POMEROY. " It may be laid down as an universal doctrine of the international law, that every sovereign independent state may transfer or acquire terri- torial or other possessions. I say this is a doctrine of the inleraational law, which does not concern itself with the internal organization of countries, and the powers committed to governments, or to any depart- ments thereof. Whether, therefore, any particular nation may transfer its territory or acquire territory from another is a question to be answered by examining the constitution of thit country, the functions and capac- ties conferred upon its rulers. Tiiis belongs entirely to public and not to international law. The same is true of the subordinate inquiry, what department of a government may eifect the transfer or receive the ac- quisition? Whether the king or other executive, the legislature, or the people assenting and ratifying the acts of their governmental agents. We are not called upon to discuss this subject; and altliou^h Vattel de- votes a large space in his treatise to its consideration, he has therein 72 CH. II.] SOVEREIGNTY AND TERRITORIAL ACQUISITION. § 43 A government that is not full}- sovereign has no right to extend its territorial possessions, and conversely one that plainly departed from the legitimate scope of a writer upon international law. "Sec. 116. To illustrate these statements: Whether the United States may acquire new territory by gift, purchase, or cession from another country, must be determined by the Constitution, and the powers of the general government erected by that organic law. The Constitu- tion itself is silent upon this particular topic; yet the power has been exercised several times: in the purchase of Louisiana and of Florida, the annexation of Texas, and the cession of California and New Mexico. The people have acquiesced, although Jefferson thought it needed a constitutional amendment to ratify his act in acquiring Louisiana. But whether the United States may transfer any of its territory, so as to cede away its paramount dominion therein, is an entirely different ques- tion, which has never, thus far in our history, been raised or discussed. "Sec. 117. By Grotius and the earlier writers upon public law king- doms were divided into patrimonial or proprietary and usufructuary. Tlie patrimcmial, as it were, belonged to the monarch as a kind of private domain which he might alienate or dispose of at will. The usufructuary included all others, in which the rulers were looked upon as the repre- sentatives of a body politic behind them, and not as themselves consti- tuting tlie state. Whatever miglit have been true in earlier times, it is certain that there is no such jjatrimonial kingdom or nation at the pres- ent day in Europe, and of course not in America. "Tiie general proposition of the international law, therefore, is, that by its proper, constituted autliorities, whatever they may be, — king, president, legislature, people, — a nation may alienate to, or acquire from, another nation, territory or other things which are the objects of prop- erty. ' It is, moreover, of the last importance to remember that a nation which allows its ruler, either in his own person or through his minister, to enter into negotiations respecting the alienation of property with other nations, must be held to liave consented to the act of the ruler; unless, indeed, it can be clearly proved that the other contracting party was aware at the time that tlie ruler in so doing was transgressing the fundamental laws of liis state.' " Pomeroy's International Law, edited by Theodore S. Woolsey, pp. 132-134. GENERAL, HALLECK'S VIEWS. "Sec. 6. Right of a State to own property. A state being regarded in public law as a body politic, or distinct moral being, naturally sov- ereign and independent, it is considered as capable of the same rights, duties and obligations, with respect to other States, as individuals with respect to other individuals. Among the most important of these nat- ural rights is that of acquiring, possessing, and enjoying pi'operty. And this right applies not only to property of the State, as exclusive of other States, but to such property as exclusive of individuals. But interna- tional law generally considers only the former kind of property, or in- 73 § 43 TREATY-aiAKING POWEJR OF THE U. S. [CH. II. cannot extend them does not possess the full measure of sov- ereignty. It is subject, by some limitation, to some other ternational domain. When, however, we consider the rights of conquest and cession, the rights of maritime capture and of capture on land, it becomes necessary to consider the interior or municipal rights of prop- erty in the State, and to distinguish between the absolute and para- mount rights of the State, in respect to property considered in its in- terior relations under municipal laws, rather than its exterior relations under international laws. As a general rule, the property of a State, of whatsoever description, is marked by the same characteristics relatively to other States, as the property of individuals, relatively to other indi- viduals ; that is to say, ' it is exclusive of foreign interference, and sus- ceptible of free disposition.' "Sec. 7. Modes of acquisition. A State may acquire property or do- main in various ways : its title may be acquired originally by mere oc- cupancy and confirmed by the presumption arising from the lapse of time ; or by discovery and lawful possession ; or by conquest, confirmed by treaty or tacit consent ; or by grants, cession, purchase, or exchange; in fine, by any of the recognized modes by which private property is acquired by individuals. It is not our object to enter into any general discussion of these several modes of acquisition, any further than may be necessary to distinguish the character of certain rights of property which are the peculiar objects of international jurisjirudence. " Sec. 8. Right of disposition of territory. A sovereign State has the same absolute right to dispose of its territorial or other public property as it has to acquire such property, but it depends upon its own munici- pal constitution and laws how, and by what department of its govern- ment, the disposition shall be made. This is sometimes a question of peculiar interest to foreign States, who may acquire such property by purchase, exchange, cession, conquest, and treaties of confirmation and especially where such acquisitions are made from States continually subject to revolutions and fiuctuations in the character of its govern- ment and in the powers of its rulers. The act of a government dr facto, a government which is submitted by the great body of the people, and recognized by other States, is binding as the act of the State ; and it is not necessary for others to examine into the origin, nature, and limits of that authority. If it is an authority de facto, and sufficieiit for the purpose, others will not inquire how that authority was obtained. "Sec. 9. Authority to make a valid transfer. Nevertheless, in order to make such ti-ansfer valid, the authority, whether de facto or dejure, must be competent to bind the State. Hence the necessity of examin- ing into and ascertaining the powei'S of the rulers, as the municipal constitutions of different States throw many difficulties in the way of alienations of their public property, and particularly of their territory. Especially, in modern times, the consent of the governed, express or im- plied, is necessary, before the transfer of their allegiance can regularly take place. But formerly, what Grotius crWs patrimonial kingdoms were considered in the light of absolute property of particular families, who, 74 CH. II.] SOVEREIGNTY AND TERRITORIAL ACQUISITION. § 43 power, which must be superior to it in that respect ; when any government is in that condition owing to any cause what- having received the blind submission of their subjects, sold and bartered them away, like any other property which they possessed. And such transfers of sovereignty included, not only the right of eminent domain and the absolute piojierty of the sovereign or State, but all private lands, and the property, and services of the subjects, who were transferred with the soil, in the same manner as a slaveholder may transfer his slaves and all they possess, together with the title to his plantation. "Sec. 10. Patrimonial kingdoms. There are numerous examples of such treaties of sale. In 1301, Theodoric, Landgrave of Thuringia, sold the Marquisate of Lusatia to Burchard, Archbishop of Magdeburg, for 600 marks of silver — 'm super cum ministeriulibus vassalis et mancipiis, et aliis hominibus, ciijuscumque conditionis in jam dicta terra commoran- tibus,^ etc. In the same manner, in 1311, Dantzic, Derschovia and Swiecae were sold by the Margrave of Brandenburg to the Grand Master of the Teutonic Order, for 10,000 marks. In 1333, the city and territory of Mechlin, was transferred for one hundred thousand reals of gold, by a treaty of sale between its Sovereign and the Eai-1 of Flanders, the fealty being reserved. About the same time the city and county of Lucques were sold by John of Luxemburg to Pliilip of Yalois, for 180,000 florins; and a few years after, the sovereignty of Frankenstein was sold by the Duke of Silesia, for 2,000 marks, to the King of Bohemia. The sov- ereignty which the Popes so long held over Avignon was purchased by Clement VI., for 80,000 florins, from Jane, Queen of Naples and Count- ess of Provence. Alaska was purchased from Russia by the United States, by treaty of March 13, 1867. " Sec. 11. Inhabitants of such kingdoms. The practice also extended to the mortgaging of sovereignties, and the sales of reversionary inter- ests in kingdoms. Thus, Robert, Duke of Normandy, in order to raise money to engage in the first crusade, mortgaged his duchy for 666 lbs. weight of silver to his brother William, and transferred the possession before his departure for the Holy Land. In 1479, Louis XL bought the right of the house of Penthievre, the next male heir in reversion, to Brittany. And fifteen years later Charles VIII. purchased, for an an- nual pension of 4,300 ducats, an estate of 5,000 in lands in France or Italy, and the disposition of the Morea (when conquered ), of Paleologus, the nephew of Constantine, the last Christian Emperor, his right to the whole Empire of Constantinople. The act of sale being drawn up by two notaries, and ratified, Charles assumed the robes, and ornaments of the imperial dignity, and made no scruples in claiming the imperial rights vested in him by virtue of this purchase. " Sec. 12. Modern Transfers. It was also the custom to dispose of sovereignties and dominions by deeds of gift, and by bequests. The Emperor Lewis V. created the daupliin Humbert Icing, with the full privilege of disposing of his sovereignty at will, during life, or at his death. In 1343, Humbert ceded his dominions to Philip of Valois, by solemn deed of gift. By similar deeds, and upon a like principle, the 75 § 43 TREATY-MAKING POWER OF THE U. S. [CH. II. ever, it must acknowledge that it lacks complete sovereignty, Emperor Henry YI. conferred upon Richard I. the kingdom of Aries, and the Emperor Baldwin gave to the Duke of Burgundy the kingdom of Thessalonia. By bequests, not only were whole sovereignties dis posed of, but the orders of succession were frequently changed. Thus Charles II., King of Sicily and Count of Provence, changed by will the order of succession to the county, and the claims of Charles VIII. to the throne of Naples were founded upon the adoption of Louis of Anjou, by Jane, Queen of IS'aples, 1380, which was evidenced to all Europe by a solemn and public deed. In 1544 the English Parliament declared the succession to the Crown, but omitted to make any arrangement in the case of failure of issue of the children of Henry VIII. The King, by his will, named the descendants of his sister Mary, Duchess of Suffolk, as heirs in case of such failure." Halleck's International Law, third Lon- don ediiion, vol. 1, 1893, pp. 153—157. PKOFESSOK LAWKENCE'S VIEWS ON TITLE BY CESSION. " Among the titles it is possible to obtain through the transfer of ter- ritories already in the possession of civilized states, the most important is title by cession. " Cession is the formal handing over by agreement of territorial pos- sessions from one state to another. The agreement is embodied in a treaty which usually contains stipulations as to the transfer along with the ceded district of a proportionate share of the public debt of the ced- ing state. Moreover, questions connected with the rights of citizenship of its inhabitants and rights over the state domains within it are usually settled in the treaty; but no general rule can be laid down as to these matters. The stipulations respecting them will vary with the circum- stances of eacli case. "Since cession is the usual method whereby changes are effected in the distribution of territory among states which are subjects of Interna- tional Law, it follows that cessions may take place in consequence of transactions of various kinds. Of these we will consider first Sale. It is not very frequent; but cases of it are to be found even in modern times, as wlien in 1867 the United States purchased Russian America for $7,200,000. The next ground of cession is Gift. Free gifts of terri- tory are not altogether unknown, though as a rule the intercourse of states is not conducted on principles of lavish generosity. Yet a gov- ernment that desired for special purposes to retain another's good-will has been known to make a gift of territory by treaty of cession. Thus in 1762, France ceded to Spain the colony of Louisiana, in order to in- demnify her for the loss of Florida, which had been transferred to Eng- land by the Treaty of Paris; and in 1850 Great Britain ceded to the United States a portion of the Horseshoe Reef in Lake Erie, in order that the government of AVashington might erect a lighthouse thereon. But in matters of transfer of territory the gift is far more often forced than free. A state beaten in a war is sometimes obliged to make over a province or a colony to the victor as one of the conditions of peace. In- 76 CH. II.] SOVEREIGNTY AND TERRITORIAL ACQUISITION. § 43 and that it cannot rank among the great and independent powers of the world.'-' Such is the condition of every State of this Union, No one of them is completely sovereign, because the people have either delegated certain elements of sovereignty to the Cen- tral Government, viewing it from a federal standpoint, or viewing it from a national standpoint, they have vested the Central Government with certain elements of sovereignty to the exclusion of the States. One of the elements of sover- eignty which the States do not possess is this right of acquisi- tion of additional territory. No one of them can extend its borders without the consent of the Central Government.^ Not having surrendered any of its fully sovereign powers, as to the matters wholly within its own domain, the United States therefore possesses, in common with every other sov- ereign power, this right of acquisition of territory which, in the light of international law as we are now viewing it, includes the right to acquire, and to exercise sovereignty deed, most cessions are the results of warfare and come under the head of forced gifts. One of the most recent instauces is to be fouud in the cession of Alsace and part of Lorraine by France to Germany. This was done by the Treaty of Frankfort of 1871, and was one of the results of the defeat and downfall of France in the war of that and the preceding year. The last ground of cession we will mention is Exchnw/e. It was common enough in times when territories were cut and carved in order to make provision for the scions of ruling families, but the growth of the principle that populations should have a voice in the settlement of their political destiny has made it comparatively rare. We can, how- ever, find one instance in recent European history. By the Treaty of Berlin of 1878 Roumania ceded to Russia that portion of Bessarabia given to it at Russia's expense in the Treaty of Paris of 1856, and received in exchange the Dobroutcha, wliicii was taken from Turkey." Lawrence's Principles of International Law, section 97, pp. 156-157. See also Woolsey's Int. Law, §53, p. 62; Hall's Int. Law, § 7, p. 45; Glenn's Int. Law, § 37, p. 49; Philiimore's Int. Law, vol. 1, §§268-270, and 275; Calvo's Int. Law, vol. 1,§§ 291-209. ^^^ Semi- Sovereign States do not possess all the essential rights of sovereignty, and therefore, can be regarded as subjects of interna- tional law only indirectly, or at least in a subordinate degree." Halleck's Int. Law ( Baker's 3d Eng- lish Edition), § 17, p. 74, Vol. I. See Hall's Int. Law, p. 31 ; Wool- sey's Int. Law, p. 35; Glenn's Int. Law, § 9, p. 17, and see citations collected in footnote, Glenn, p. 17. 3U. S. Const. Art. I., § 10 and see § 19 of this volume, ante. 77 § 44 TREATY-MAKING POWER OF THE U. S. [CH. II. over, whatever territory it may desire and can obtain by any method recognized by international law, and also to extend such sovereignty over all of the inhabitants thereof.* § 44. Methods of acquisition of Territory. — There are various ways in wliich a sovereign power may increase its territory and extend its sovereignty. Those recognized b}"- international law (besides accretion by the acts of the ele- ments) are as follows: ^ I. Discovery and Occupation. — The original title to all of North and South America is based upon this method of acquisition. The United States added the Oregon district to its domain by the discovery of the mouth of the Columbia River by Captain Gray, the expedition of Lewis and Clarke, and the Astoria settlement. The title of the United States to the Guano and Midway Islands also rests upon discovery and occupation. II. Conquest. — The right of the victorious nation to re- tain the ownership of invaded and conquered territory is stiU recognized by international law. Few recent titles rest exclusively upon conquest, however, as it has practically be- come a universal custom to settle ownership of territory and boundary lines after every war by a treaty ; the conquering power generallv, and properh'^, insists upon an unequivocal cession of the territory which it accepts as indemnity, or re- tains as conquered, so as to avoid all subsequent questions of ownership and sovereignty. For this reason it is sometimes difficult to determine whether territory so acquired is con- quered or ceded ; this applies to our Mexican territory ac- quired in 1848, as well as to our latest acquisitions. In both instances we held, and could have retained, them as con- quered, but we obtained cessions thereof in the treaties of peace concluded on terminating the wars. * American Ins. Co. vs. Canter, U. S. Sup. Ct. 1828, 1 Peters, 511, Marshall, Ch. J. Jones vs. United States, U. S. Sup. Ct. 1890, 137 U. S. 202, Gray, J. 78 §44. 1 See report of Charles E. Ma- goon, law officer, Division of Insu- lar Affairs, War Department Feb- ruary, 1890. Senate Document 234, 56th Congress, 1st session, for the legal aspects of the territorial ac- quisitions of the United States. CH. II.] SOVEREIGNTY AND TERKITORIAL ACQUISITION. § 44 III. Cession BY ONE Sovereign Power to Another. — This may be either, a. For a monetary consideration, without the element of conquest or coercion, as was the case when we purchased Louisiana from France in 1803, Florida from Spain in 1810, Arizona from Mexico in 1853, and Alaska from Russia in 1867. h. By exchange of territory, which, to some extent was an element of our purchase of Florida, when Ave ceded to Spain a part of Texas, which, up to that time, we had claimed was included in the Louisiana purchase. G. At the end of a war, partly for indemnity and partly for other considerations, as was the case when Calit'ornia and other Mexican territory was ceded in 1848, and the Phil- ippines; Porto Rico and Guam were transferred to us in 1898, d. Without any consideration except good- will, as was the case when Great Britain ceded Horse Shoe Reef in Lake Erie to the United States in 1850. IV. By Annexation, when Two Governments by Treaty OR Reciprocal Legislation, Unite under the Government OF One or the Other. — This was the case when Texas was admitted to the Union as a State and surrendered her inde- pendent government for the conditions of statehood in the United States in 1845, and also when Hawaii became a part of the territory of the United States under congressional resolution in 1898. The title of the present domain of the United States, there- fore, rests upon every different method of acquisition known to international law, but as to every portion thereof the title is clear and recognizable by that law as well as by our own laws, as they have been defined and construed by the Su- preme Court.2 2 NOTE BY AUTHOR ON ACQUISITIONS OF TERRITORY BY UNITED STATES. In December, 1898, immerliately after the conclusion of the Treaty of Paris between the United States and Spain, the author published a pamphlet entitled " Our Treaty with Spain," in which the various territorial annexations of the United States were enumerated as fol- lows (The treaty volume referred to is the edition of 1889): The right of the United States to acquire territory has been the sub- 79 § 45 TREATY-MAKING POWER OF THE U. S. [CH. U. § 45. Cessions of Territory to other powers thau United States. — All the instances of transfer given above relate to ject of a vast amount of debute in Congress and in the papers. There are some who deny the right, but it is difficult to conceive on what au- thority. Tlie Supreme Court has decided that the United States is a natiun, and as such has all the rights of sovereignty that every other sovereign nation has, and can exercise them just as broadly, including the right of acquisition of territory. . . . As to right of acquisition and the right to govern territory when ac- quired, see also, Pomeroy's Constitution, 494-498, Jones vs. U. S. (the Navassa Islands case), 137 U. S. pp. 202-212; Justice Miller's Lectures on the Constitution, 35, 36, 55, 57; Justice Curtis's Opinion (Dred Scott case), 19 Howard, 612-614. These cases and opinions are all based upon the broad declaration made by Chief Justice Marshall, in 1824, in American Ins. Co. vs. Can- ter, 1 Peters, 511, p. 542: "The Constitution confers absolutely on the Government of the Union the power to make war and to make treaties; consequently that government possesses the power of acquiring terri- tory either by conquest or by treaty." Cessions of Territory made to the United States. — This (the cession of territory in the treaty of Paris of 1898) is the second cession of territory made by Spain to the United States, and, at least the eleventh acquisi- tion of territory, by the United States, increasing its original area of less than a million square miles to its present magnificent domain three times as large in area and over fifteen times as great in population; the first cession made by Spain was in 1819 under the Adams-de Onis Treaty, by wliich Spain ceded Florida to the United States, in consideration of •S5, 000,000, which was the liquidated amount of the claims owed by Spain to citizens of the United States for depredations upon our com- merce and in territory adjoining Florida, The United States has acquired Territory as folloios': By the Treaty of Peace with Great Britain after the Revolutionary War, when the original boundaries of the United States were fixed, and Great Britain renounced all jurisdiction over the territory theiein, which included not only the thirteen original States themselves, but also a part of what was afterwards included in the Northwest Territory; the origi- nal territory extended from what is now Canada on the north— the boundary line between which and the United States has been fixed by several subsequent treaties and arbitrations — to the northerly line of Florida on the south; from the Atlantic on the east, to the Mississippi on the west, containing about eight hundred and twenty-five thousand square miles. (U. S. Treaty Volume, p. 375.) The acquisitions of territory since that time have been: (1) Louisiana, consisting, including Oregon the discovery and occupa- tion of which grew out of tliis acquisition, of over a million square miles, ceded by France to the United States under treaty of April 30, 1803, ratified October 21, 1803, by which France, under Napoleon Bonaparte as First Consul, through Barbe Marbois, ceded the territory for 60,000,000 80 CH. II.] SOVEHEIGNTY AND TEKRITORTAL ACQUISITION. § 45 our own acquisitions. Numerous examples could be given of similar transfers in every part of the world, and under francs, and the relinquishment of claims amounting to 20,000,000 francs, (U. S. Treaty Volume, pp. 331-342). Well did Mr. Livingston exclaim to Mr. Monroe, as they arose from signing the treaty: "We have lived long, but this is the noblest work of our lives." (2) Florida, consisting of about sixty thousand square miles, under the treaty with Spain in 1819, above referred to. ( U. S. Treaty Volume, p. 1016.) (3) Oregon and adjoining territory vras acquired by the United States under the general rules of discovery and occupancy, based upon the dis- covery of the mouth of the Columbia River by Captain Gray, master of the good ship Columbia, entering from the Pacific in 1797; by Lewis and Clarke as explorers in an expedition fitted by the United States proceed- ing from the east about 1804; and by the ei-ection of the furring post by John Jacob Astor at Astoria in 1811. The title to Oregon was subse- quently confirmed by treaty with Spain in 1819, so far as the northerly line of the Spanish possessions was concerned, not, however, in the na- ture of cession, but only of quitclaim. (U. S. Treaty Volume, p. 1016.) The area of territory north of California and east of the Eockies is about three hundred and fifty thousand square miles. (4) Texu-s, with an area of over a quarter of a million square miles, in 1845, by joint resolution, adopted by both Houses of Congress, after a proposed treaty had failed, was admitted as a State, the legislature of the Republic of Texas having accepted the terms and conditions con- tained in a joint resolution adopted by Congress. (For resolution and proclamation, see U. S. Statutes at Large for 1845.) (5) California, Colorado, Nevada, Utah, New Mexico, and parts of Ari- zona and other States, over five hundred thousand square miles in all, were acquired under the Treaty of Guadalupe-Hidalgo with Mexico in 1848, at the termination of the Mexican War, and in consideration of ■$15,000,000 paid to Mexico under somewhat similar circumstances as the $20,000,000 is to be paid to Spain under the present treaty. ( U. S. Treaty Volume, p. 687.) (6) Horse Shoe Beef in Lake Erie was ceded to the United States by Great Britian in 1850, without any actual consideration, but under agree- ment that the United States would erect and maintain a lighthouse thereon. (U. S. Treaty Volume, p. 444.) (7) The Navassa Islands, near Hayti, and the other Guano Islands in the Pacific Ocean, have been taken and occupied by the United States by discovery in pursuance of statutes of the United States made in re- gard thereto (U. S. Revised Statutes, sees. 5770-5778); The Midway Is- lands, situated in the Pacific Ocean, about half way between Hawaii and Japan, weie discovered by citizens, and afterwards formally occu- pied in 1807 by the naval forces of the United States under the direc- tion of Secretary Gideon Welles. (See Senator Piatt's Speech, Senate, December 19, 1898, Congress. Rec. p. 325. ) (8) Part of Arizona and Neio Mexico, consisting of nearly fifty thou- 6 81 § 45 TREATY-MAKING POWER OF THE U. S. [CH. H. every method, showing that they have all been recognized as legal, and have been acted upon universally and constantly for centuries. Canada was transferred by France to Great Britain in 1763 ; Spain and France several times exchanged Louisiana before it was finally ceded to the United States ; Cuba and the Philippines were ceded by Spain to England in 1762, and by England back to Spain in 1761 ; in recent times Germany acquired Alsace and LoiTaine from France by conquest and treaty cession ; Savoy was ceded to France, the Ionian Islands sand square miles, were acquired under treaty negotiated by James Gadsden in 1853, and for -which the sum of $10,000,000 was paid to Mexico. (U. S. Treaty Volume, p. 694.) (9) Alaska, in 1867, became United States territory by a treaty nego- tiated between William H. Seward, as Secretary of State, and Edward Stoekl, Russian Ambassador to the United States, and which conveyed to this Government all of the Russian possessions in America, consisting of over half a million square miles, and to which the name of Alaska has since been applied, for $7,200,000. (U. S. Treaty Volume, p. 939.) (10) Hawaii was annexed by a joint resolution adopted by the Con- gress of the United States, and approved July 7, 1898, the terms of which were accepted by the legislative body of Hawaii shortly there- after, and by which joint action all of the islands forming the sov- ereignty of Hawaii, and which were formerly known as the Sandwich Islands, became a part of the territory, but not as a State of the United States, and subject to the terms of the joint resolution. (30 Stat, at L., p. 750.) (11) The Philippines, Porto Eico and Guam were annexed by the trea- ties with Spain of December 10, 1898, (30 Stat, at L., p. 1754; see also Insular Cases Appendix, p. 000, jjost) and of November 7, 1900 (31 Stat, at L., p. 1942). This latter treaty transferred a part of the Philippine Is- lands not included in the boundaries set by the treaty of 1898. (12) The United States has also acquired the island of Tutuila, one of the group of the Samoan Islands, which contains the harbor of Pago- Pago. (See treaty with Samoa, U. S. Treaty Volume, ed. 1899, p. 551.) (See the last map of the United States, published by the Government, for most of these additions of territory, showing their area and geograph- ical location). See also for details of acquisition of territory prior to 1898, The Lou- isiana Purchase, by Dinger Hermann U. S. Land Commissioner, pub- lished by the Department of the Interior, Washington, Government Printing Office, 1898. Volume I of James G. Blaine's Twenty Years in Congress contains an exhaustive review of the causes leading to annexation of territory and the effect of annexation. 82 CH. n.] SOYEREIGNTY AND TERRITORIAL ACQUISITION. § 46 to Greece, Yenetia to Italy ; in fact, an examination of the map of Europe will show constant and numerous changes of sovereignty, all of which have been recognized as valid by the powers to, and from, which the transfers have been made, by the inhabitants of the transferred territory, and by all the other powers of the world.^ § 40. Couseut of governed not required under interna- tional law. — The principle of international law, that the con- sent of the inhabitants of territor}'^, ceded by one sovereign power to another, is not required to validate the transfer, either of the territory or the sovereignty thereover, is as well established as the principle of municipal law, as it is gen- erally administered, has been established, that the consent of a tenant is not necessary to enable the owner of the fee to dispose of it. This rule has been recognized and adopted not only in the United States, but the world over. There was no plebiscite in Alsace or Lorraine when the borderland Frenchmen be- came the subjects of Germany. The French colonists of Quebec could not speak English when by the treaty of 1763 they were transformed into British subjects. The Spanish and native population of Cuba and the Philippines were not consulted in 1762 or 1761.^ §45. 1 bee the instances of transfer of territory referred to in notes to § 43, ante. §46. i"§ 1. Right of One Sovereign Power to Cede Territory to Another Sovereign Power. — This riglit is discussed in Hall's International Law, section 9, pages 47-50. He defines it as follows (p. 47): " ' The rights of a state with re- spect to property consist in the power to acquire territory, . . . in being entitled to peaceable pos- session and enjoyment of that which it has duly obtained, and in the faculty of using its proj^erty as it chooses and alienating it at will. . , . The principle that the wishes of a population are to be consulted when the territory which they inhabit is ceded, has not yet been adopted into international law, and cannot be adopted into it until title by conquest has dis- appeared.' " He cites the cessions of Savoy to Frame, the Ionian Islands to Greece, Venetia to Italy, and other European cessions, and further says (p. 49): " 'States being the sole interna- tional units, the inhabitants of a ceded territory, whether acting as an organized body or as unorgan- ized mass of individuals, have no more power to confirm or reject the action of their state than is pos- sessed by a single individual. An 83 §47 TREATY-ISIAKING POWER OF THE U. S. [CH. U. § 47. The United States has never asked the consent of the inhabitants of ceded territory. — The United States has never asked the inhabitants of any of its purchased territory- act, on the other hand, done by the state as a whole is, by the very conception of a state, binding upon all the members of it.' " The followiug is a citation from an eminent authority: " 'I need not dwell upon the right to transfer territory, or in other words, to put an end to all domin- ion over them, for acquisition on the part of one nation implies transfer, or end of dominion, by another.' — John Norton Pome- roy's Lectures on International Law, edited by Theo. S. Woolsey, Boston, 1S8G, p. 198. " In Halleck's International Law, San Francisco edition, 18G1, at page 125, the rule is stated: " 'A state being regarded in our law as a body politic or distinct moral being, naturally sovereign and independent, it is considered capable of the same rights, duties and obligations with respect to other states as individuals with re- spect to other individuals. Among the most important of these natu- ral rights is that of acquiring, pos- sessing, and enjoying property. . . . A sovereign has the same absolute right to dispose of its territorial, or rather public, proi> erty, as it has to acquire such prop- erty.' " Halleck thinks that in some cases the consent of the governed is necessary before the transfer of allegiance can take place, but he shows, however, that there are numerous examples of treaties of sale, and cites a number of them on pages 128 and 129, and states that in some instance territories 84 have even been mortgaged, and bought in thereafter, and that fur- thermore, it has been the custom ' to dispose of sovereignties and do- minions by deeds of gift and be- quests.' " — From" Our Treaty with Spain," referred to in note under § 44 ante. Professor Woolsey says: " Sec. 54. There is a tendency, in quite recent times, to act, in in- ternational arrangements, upon the principle here stated, that the con- sent of the inhabitants of a ceded territory ought to be obtained. In the treaty of Prague of 1866 (see Append, ii., sub anno], it is pro- vided that the rights of Austria to Schleswig-Holstein are ceded to Prussia, ' with the reservation that the inhabitants in northern Schles- wig shall be united anew to Den- mark, if they express the desire for it in a free vote.' (This, how- ever, has never been taken. ) Here, however, the Danish nationality of that part of the duchy was, without doubt, of weight, and of the more weight, as the Germans had insisted on the German nationality of both duchies in their contest with Den- mark. In 1860 the Neapolitan prov- inces, — Sicily, the Marches, and Umbria, — were annexed to the kingdom of Italy in the same way by direct and universal suffrage. The decree of December 17, which declares the Neapolitan provinces to form thenceforth an integral part of the kingdom, is based on the submission of a plebiscitiun to the people, on the proof that it was pre- sented to them and accepted, and on a law authorizing the government CH. II.] SOVEREIGNTY AND TERKITORIAL ACQUISITION. § 47 to ratify the transfer. It has always acted on the basis that it had the right to acquire the territory if the other sov- ereign had the right to cede it. There was no plebiscite in 1803 in Louisiana, where the inhabitants were subjects of Spain, of France and of the United States, within the brief space of a single month. No consent was asked of the inhab- itants of Florida in 1810, of the Mexicans in 1818 or 1853, or of the Alaska Indians or Russian colonists in 1867 ; no rea- son now exists why the consent of the inhabitants, Spanish or native, of the Philippines, Porto Rico or Guam, should be asked, expected, or in any manner regarded as requisite, to complete our title under the treaty of 1898. Had the inhabitants of Louisiana refused their consent to the transfer of that province from Spain to France, or from France to the United States, would we have been forced to permit the mouth of the Mississippi, to obtain the control of which the purchase was made, to remain in the hands of a foreign power, and thus have lost, not only the territory we had paid for, but also all access to the sea, which was ab- solutely essential for our commercial salvation ? Had the inhabitants of Florida in 1819, as might possibly have been the case, insisted upon their consent being obtained, 'to accept, and by royal decrees establish, the annexation to the state of those provinces of central and southern Italy in which there shall be manifested freely, by di- rect, universal suffrai^e, the w\U to become an integral part of the con- stitutional monarchy,' of Italy. In this way, doubtless, it was in- tended to turn a half rig^ht into a whole one, or to sanctify unjust conquest by popular consent. The principle would be a good and beneficial one as between two states that such consent should be necessary before a transfer of alle- giance. But, to make a desire on the part of the inhabitants of a district a ground for interfering on their behalf to disconnect them from one state, and to connect them with another, would go beyond any interference now known to in- ternational law in its disintegrat- ing tendency, and would give rise to any amount of intrigue and un- just influence. " In the Treaty of Turin, uniting Savoy and Nice to Franco, the finst article provides that ' this union shall be effectuated without con- straining the will of the inhabi- tants, and that the governments of the P]mperor of the French and of the King of Sardinia will agree as soon as possible as to the best means of estimating and cei'tifying the demonstrations of tliis will.' (Martens, N. Kec. Gen. XVI. 2, 539. Comp. App. ii., under 1859.)" Woolsey's Int. Law, pp. 63-65. 85 § 48 TREATY-MAKING POWER OF THE U. S. [CH. II. had the tribes of Indians, and hordes of buccaneers compos- ing the population of that colony of Spain objected to the strong arm of the United States being extended over them, and their consent had been required, not only would we never have been able to collect the indemnity due to us from Spain, and which was represented by the value of that ces- sion ; but, according to the doctrines announced two years ago by a minority in the Senate, we might still have a foreign power between our southern boundary and the Gulf of Mex- ico. The extension of our sovereignty from the western boundary of the Louisiana purchase to the Pacitic might have been prevented in 1848, had it been necessary to ob- tain the consent of the then far scattered inhabitants of the ceded territory. The same conditions prevail in regard to the territory ceded under the treaty of 1898. The legal principles are exactly the same ; so far as the}^ are concerned, the number of in- habitants, and their race, color and condition make no differ- ence whatever. § 48. Impracticability of ascertaining consent. — The im- practicability of ascertaining such consent after a ceding government has ceded, and the receiving government has ac- cepted, territory, can be most plainly shown by assuming for a moment that such consent is required, and then ascertaining how the consent must be evidenced, and what the result would be if the inhabitants should not give their consent. It would probably be beyond the ability of an}'^ expert in municipal or international law to answer the following ques- tions in regard to the recent acquisitions of the United States : 1. AVhose consent is necessary ; in this respect, bearing in mind that until the extension of our laws over the territory there is no basis for suffrage — men, women, children, black, white, Spanish, Chinese, native, all are alike — and also how can they express this consent ? 2. In what manner, and under whose supervision, must this consent be expressed ; in this respect, bearing in mind that one of the highest acts of sov- ereignty is permitting the exercise of suffrage, and control- ling the manner in which it may be exercised ? 3. What would be the effect of the expression in case it were not, as 86 CH. II.] SOVEREIGNTY AND TERRITORIAL ACQUISITION. § 50 must inevitably be the case, unanimous; taking into consid- eration whether or not any power exists under those circum- stances, by which the majority could coerce a minority until after some law to that effect had been established ? 4. In case the consent were withheld, who is to enforce law and order, and how could the United States avoid national re- sponsibility for disorder if it should now withdraw and leave the peaceable inhabitants to their fate ? Of course it is simply a reductio ad absurdum to say that we must exercise over any territory the very highest acts of sovereignty in order to find out if we have the right to exer- cise any sovereignty whatever. § 49. Special instances in which obtaining consent might be practicable. — There are, however, instances, as in the cases of Texas and Hawaii, where the inhabitants can express their consent, and the annexation can be made as the result of the voice and the wish of the inhabitants ; it would be just as reasonable, however, to require that the inhabitants of the United States should be called upon to express, by a popular plebiscite, their acceptance of the annexation as to require the plebiscite of the other country, after the ruling powers, properly exercising sovereignty thereover, had con- sented to the annexation. Had the proposed annexations of Texas or Hawaii been rejected by a popular vote, they might have been prevented, although the author is not pre- pared to admit that such would have been the case if the rul- ing powers had assented thereto. Those annexations, how- ever, were entirely different from the transfers of territory from sovereign powers that have been compelled to make the transfers either for reasons of political convenience or under duress of conquest ; in such cases, of course, the refusal on the part of the inhabitants to assent to the transfer has no effect whatever except, as has been evidenced in the Philip- pine Islands, to place such of the non-consenting inhabitants who have attempted to express their dissent by force, in the category of insurgents. § 50. Restrictions on acquisitions of territory by Euro- pean powers under "balance of power" theory. — While international law places no restraint upon any sovereign power from acquiring territory, there have been some restric- 87 §51 TKEATY-INIAKING POWER OF THE U. S. [CH. H. tions placed thereon as between some of the great European powers ; these restrictions, howev^er, are not based upon any lack of power either to acquire territory or to cede it, but are based upon the political necessity of maintaining the equilib- rium between those governments. This is known as the " balance of power " theory. Kestrictions have also been placed on the acquisition by European powers of territory, on this side of the Atlantic, which, are also based on politi- cal grounds but of a different nature, as will be stated in the next section.^ § 51. Acquisitions of United States never objected to by other powers. — These points are referred to here for the purpose of calling attention to two remarkable facts. The first is, that of all the great powers of the world the United States alone has exercised the right to acquire territory without any restraint being imposed upon it, or protest being uttered against its course, by any other power great or small ; the second is, that during the past seventy-five years the United States has prevented nearly every European power from exercising the right of acquisition, simply by protesting that the United States would consider the con- templated act as prejudicial to its own interests, and contrary to the policy which it has declared must govern the condi- tions of the ^Yestern Hemisphere. When Russia forced Turkey in 1878 to cede vast tracts of territor}'- to her in the nature of indemnit}^, the Congress of Berlin over which Bismarck presided not only protested against Russia's great accessions as being dangerous to the peace of Europe, but forced her to restore a large amount of the territory which she bad acquired under the treaty of San Stephano.^ §50. ^The political doctrine known as " the balance of power," is referred to, and supported as one founded on natural principles, by James W. Gerard in bis " Peace of Utrecbt," chap. I., pp. 1-4. §51. 1 The treaty of San Stef ano was concluded on March 3, 1878; by it 88 the frontier line between Eussia and Turkey was pushed so far to the south that the other European powers became alarmed at the great additional power acquired by Russia; Lord Salisbury at once gave notice that England could not look upon this with indiffer- ence and Count Miinster on behalf of the Emperor of Germany invited CH. n.] SOVEREIGNTY AND TERMTORIAL ACQUISITION. § 52 In the dismemberment of Turkey, the break-up of China, the parceling of Africa into colonies and spheres of influ- ence, each power has jealously watched events so that all apparent advantages have been immediately equalized, either by the reduction of one or the increase of the other, as was the case when the seizure by the Germans of Foo Chow in China resulted immediately in Russia occupying Port Arthur, and Great Britain taking possession of Wei Hai Wei. Against the steady increase, however, of the United States no protest has been raised, no equalizations have been de- manded. We have negotiated, and carried into effect, every treaty involving cessions of territory without the interven- tion or interference of any other power. No other government could have acquired the Philippine Archipelago without raising a storm of protest from all the other powers of the world ; an attempt on the part of any European power to have acquired those islands would un- questionably have resulted in a congress being held at Ber- lin, Vienna, or some other European capital, to determine how the islands should be distributed between the different powers of Europe, or otherwise disposed of. § 52. Acquisition of European powers prevented by Uni- ted States under Monroe Doctrine On the other hand the United States has, whenever it deemed it advisable, protested against the acquisitions of American territory by other pow- ers, and has always been able to maintain its position. The Monroe Doctrine, dear to the heart of every American, and the keystone of our impregnable position on this hemisphere, could never have been promulgated and insisted upon by the Powers to send representatives to a congress which should meet in Berlin to "discuss the stipula- tions of the Preliminary treaty be- tween Russia and Turkey signed at San Stefano on the 3d of March, 1878." The invitation was ad- dressed to all the powers which were signatory to the treaties of Paris of 18o6andof London of 1871. The Congress met on June 13, 1878, and Prince Bismarck was elected President; a treaty was concluded on July 13th by which a large part of the territoi-y ceded under the treaty of San Stefano was restored to Turkey. The signatory powers were Great Britain, Germany, Austria, France, Italy, Russia and Turkey. The Treaty of San Stefano, the Protocols of the Berlin Congress and the Treaty of Berlin with maps showing the territory restored ap- pear in vol. IV., Hertslet, Map of Europe by Treaty, pp. 2672-2799. 89 § 62 TREATY-]\LVKING POWER OP THE U. S. [CH. II. ourselves, nor indeed would an}^ attention iiave been paid thereto by any other government, had it not been the decla- ration of a nation that was as absolutely sovereign as any other power in the world.^ §52. 1 AUTHOR'S NOTE OX THE MONROE DOCTRINE. THE MOKBOE DOCTEIXE AS ENUNCIATED BY PRESIDENT MONROE, DECEM- BER 2, 1823. " At the proposal of the Russian Imperial Government, made thi-ough the minister of the Emperor residing here, a full power and instructions have been transmitted to the minister of the United States at St. Peters- burg to arrange by amicable negotiation the respective rights and inter- ests of tlie two nations on the Northwest coast of this Continent. A similar proposal has been made by His Imperial Majesty to the Govern- ment of Great Britain, which lias likewise been acceded to. The Govern- ment of the United States has been desirous by this friendly proceeding of manifesting the great value ■which they have invariably attached to the friendship of the Emperor and their solicitude to cultivate the best understanding with his Government. In the discussions to which this interest lias given rise and in the arrangements by which they may ter- minate the occasion has been judged proper for asserting, as a principle in which the rights and interests of the United States are involved, that the American Continents, by the free and independent condition which they have assumed and maintain, are henceforth not to he considered as subjects for future colonization by any European powers. . . " It -was stated at the commencement of the last session that a great effort was then making in Spain and Portugal to improve the condition of the people of those countries, and that it appeared' to be conducted with extraordinary moderaticm. It need scarcely be remarked that the result has been so far very different from what was then anticipated. Of events in that quarter of the globe with which we have so much in- tercourse and from which we derive our origin, we have always been anxious and interested spectators. The citizens of the United States cherish sentiments the most friendly in favor of the liberty and happi- ness of their fellow-men on that side of the Atlantic. In the wars of the European powers in matters relating to themselves we have never taken any part, nor does it comport with our policy so to do. It is only when our rights are invaded or seriously menanced that we resent injuries or make preparation for our defense. " With the movements in this hemisphere we are of necessity more im- mediately connected, and by causes which must be obvious to all en- lightened and impartial observers. The political system of the allied powers is essentially different in this aspect from that of America. This difference proceeds from that which exists in their respective Gov- ernments; and to the defense of our own, which has been achieved by 90 CH. II.] SOVEREIGNTY AND TERRITORIAL ACQUISITION. § 52 Protests indeed have been made against our right to main- tain the Monroe Doctrine, but, notwithstanding the protests, the loss of so much blood and treasure, and matured by the wisdom of their most enlightened citizens, and under which we have enjoyed un- exampled felicity, this whole nation is devoted. We owe it, therefore, to candor and to the amicable relations existing between the United States and those powers to declare that we should consid-er any attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety. With the existing colonies or depeudeacies of any European power we liave not interfered and shall not interfere. Uiit with the Governments who have declared their independence and maintained it, and whose independence we have, on great consideration and on just principles, acknowledged, we could not view any interposition for the purpose of oppressing them, or con- trolling in any other manner their destiny, by any European power in any other light than as the manifestation of an unfriendly dis- position toward the United States. In the war between those new Governments and Spain we declared our neutrality at the time of their recognition, and to this we have adliered, and shall continue to adhere, provided no change shall occur which, in the judgment of the competent authorities of this Gt)vernment, shall make a corresponding change on the part of the United States indispensable to their security. " The late events in Spain and Portugal show that Europe is still un- settled. Of this important fact no stronger proof can be adduced than that the allied powers should have thought it proper, on any principle satisfactory to themselves, to have interposed by force in the internal concerns of Spain. To what extent such interposition may be carried, on the same principle, is a question in which all independent powers whose Governments differ from theirs are interested, even those most remote, and surely none more so tlian tlie United States. Our policy in regard to Europe, which was adopted at an early stage of the wars wiiich have so long agitated that quarter of the globe, nevertheless remains the same, which is, not to interfere in the internal concerns of any of its powers; to consider the Government tie facto as the legitimate Govern- ment for us; to cultivate friendly relations with it, and to preserve those relations by a frank, firm, and manly policy, meeting in all instances the just claims of every power, submitting to injuries from none. But in regard to those continents circumstances are eminently and conspicu- ously different. It is impossible that the allied powers should extend their political system to any portion of either continent witliout en- dangering our peace and happiness; nor can any one believe that our southern brethren, if left to themselves, would adopt it of their own accord. It is equally impossible, therefore, that we should behold such interposition in any form witli indifference. If we look to the com- parative strength and resources of Spain and those new Governments, and their distance from each other, it must be obvious that she can never subdue them. It is still the true policy of the United States to leave the parties to themselves, in the hope that other powers will pur- 91 § 52 TREATY-MAKING POWER OF THE TJ. S. [CH. II. our warnings have been respected in every instance in which we have uttered them in accord with the spirit in which the sue the same course." [Extract from the Seventh Annual Message transmitted to the Congress of the United States by James Monroe, fifth President of the United States, on December 2, 1823. Richardson's Messages and Papers of the Presidents, vol. II., pp. 209, 217-219. The paragraphs in bold face type in the preceding and subsequent quota- tions are those which are generally quoted as the "Monroe Doctrine," and which constitute the best existing exposition of the principle of non-interference of European powers in American affairs.] The neutral position which the United States had maintained in regard to the relations of Spain and the Spanish-American Colonies was referred to at length in President Monroe's Sixth Annual Message transmitted to Congress on December 3, 1822, as follows: "A strong hope was entertained that peace ere this would have been concluded between Spain and the independent governments south of the United States in this hemisphere. Long experience having evinced the competency of those governments to maintain the independence which they had declared, it was presumed that the considerations which induced their recognition by the United States would have had equal weight with other powers, and that Spain herself, yielding to those mag- nanimous feelings of which her history furnishes so many examples, would have terminated on that basis a controversy so unavailing and at the same time so destructive. We still cherish the hope that this result will not be long postponed. "Sustaining our neutral position and allowing to each party while the war continues equal rights, it is incumbent on the United States to claim of each with equal rigor the faithful observance of our rights ac- cording to the well-known law of nations. From each, therefore, a like co-operation is expected in the suppression of the piratical practice wliich has grown out of this war and of blockades of ex^tensive coasts on both seas, which, considering the small force employed to sustain them, have not the slightest foundation to rest on. "Europe is still unsettled, and although the war long menaced be- tween Russia and Turkey has not broken out, there is no certainty that the differences between those powers will be amicably adjusted. It is impossible to look to the oppressions of the country respecting which those differences arose without being deeply affected. The mention of Greece fills the mind with the most exalted sentiments and arouses in our bosoms the best feelings of which our nature is susceptible. Supe- rior skill and refinement in the arts, heroic gallantry in action, disin- terested patriotism, enthusiastic zeal and devotion in favor of public and personal liberty are associated with our recollections of ancient Greece. That such a cormtry should have been overwhelmed and so long hidden, as it were, from the world under a gloomy despotism has been a cause of unceasing and deep regret to generous minds for ages past. It was natural, therefore, that the reappearance of those people in their original character, contending in favor of their liberties, should 92 CH. n.] SOVEREIGNTY AND TERRITORIAL ACQUISITION. § 52 doctrine was originally announced, and has ever since been, as it always should be, maintained.^ 2 See reference to Lord Salis- I bury's letter in note 1 on page 107, I post. produce that great excitement and sympathy in their favor whicli have been so signally displayed throughout the United states. A strong hope is entertained that tliese people will recover their independence and resume their equal station among the nations of the earth. " A great effort has been made in Spain and Portugal to improve the condition of the people, and it must be very consoling to all benevolent minds to see the extraordinary moderation with which it has been con- ducted. That it may promote the happiness of both nations is the ar- dent wish of this whole people, to the expression of which we confine ourselves; for whatever may be the feelings or sentiments which every individual under our Government has a right to indulge and express, it is nevertheless a sacred maxim, equally with the Government and the people, that the destiny of every independent nation in what relates to such improvements of right belongs and ought to be left exclusively to themselves. " Whether we reason from the late wars or from those menacing symp- toms which now appear in Europe, it is manifest that if a convulsion should take place in any of those countries it will proceed from causes which have no existence and are utterly unknown in the States, in which there is but one order, that of the people, to whom the sovereignty ex- clusively belongs. Sliould war break out in any of those countries, who can foretell the extent to which it may be carried or the desolation which it may spread? Exempt as we are from these causes, our in- ternal tranquillity is secure; and distant as we are from the troubled scene, and faithful to first principles in regard to other powers, we might reasonably presume that we should not be molested by them. This, however, ought not to be calculated on as certain. Unprovoked injuries are often inflicted, and even the peculiar felicity of our situation might with some be a cause for excitement and aggression. The history of the late wars in Europe furnishes a complete demonstration that no sys- tem of conduct, however correct in principle, can protect neutral powers from injury from any party; thata defenceless position and distinguished love of peace are the surest invitations to war, and that there is no way to avoid other than by being always prepared and willing for just cause to meet it. If there be a people on earth whose more especial duty it is to be at all times prepared to defend the rights with which they are blessed, and to surpass all others in sustaining the necessary burthens, and in submitting to sacrifices to make such preparations, it is undoubt- edly the people of those States. " When we see that a civil war of the most frightful character rages from the Adriatic to the Black Sea; that strong symptoms of war appear in other parts, proceeding from causes which, should it break out, may become general and be of long duration; that the war still continues between Spain and the independent governments, her late Provinces, 93 § 53 TREATY-MAKING POWER OF THE U. S. [CH. n. § 53. Russia's colonization on the Pacific Coast stopped. — In 1823, even prior to the delivery of President Monroe's mes- in this hemisphere; that it is likewise menaced between Portugal and Brazil, in consequence of the attempt of the latter to dismember itself from the former, aud that a system of piracy of great extent is main- taiued in the neighboring seas, which will require equal vigilance aud decision to suppress it, the reasons for sustaining the attitude which we now hold and for pushing forward all our measures of defence with the utmost vigor appear to me to acquire new force. " The United States owe to the world a great example, and, by means thereof, to the cause of liberty and humanity a generous support. Tliey have so far succeeded to the satisfaction of the virtuous aud enlightened of every country. There is no reason to doubt that their whole move- ment will be regulated by a sacred regard to principle, all our institu- tions being founded on that basis. The ability to support our own cause under any trial to which it may be exposed is the great point on which the public solicitude rests. It has been often charged against free governments that they have neither the foresight nor the virtue to provide at the proper season for great emergencies; that their course is improvident and expensive; that war will always find them unprepared, and, whatever may be its calamities, that its terrible warnings will be disregarded and forgotten as soon as peace returns. I have full con- fidence that this charge so far as relates to the United States will be shown to be utterly destitute of truth." Richardson's Messages and Papers of the Presidents, vol. II., pp. 192-195. A year after the doctrine had been announced, President Monroe, in his last annual message transmitted to Congress, December 7, 1824, re- ferred to the effect of the announcement as follows: "In turning our attention to the condition of the civilized world, in which the United States have always taken a deep interest, it is grati- fying to see how large a portion of it is blessed with peace. The only wars which now exist within thnt limit are those between Turkey and Greece, in Europe, and between Spain and the new Governments, our neighbors, in this hemisphere. In both these wars the cause of inde- pendence, of liberty and humanity, continues to prevail. The success of Greece, when the relative population of the contending parties is considered, commands our admiration and applause, and that it has had a similar effect with the neighboring powers is obvious. The feel- ing of the whole civilized world is excited in a high degree in their favor. May we not hope that these sentiments, winning on the hearts of their respective Governments, may lead to a more decisive result; that they may produce an accord among them to replace Greece on the ground which she formerly held, and to which her heroic exertions at this day so eminently entitle her? " With respect to the contest to which our neighbors are a party, it is evident that Spain as a power is scarcely felt in it. These new States had completely achieved their independence before it was acknowledged by the United States, and they have since maintained it with little for- 94 CH. II.] SOVEREIGNTY AND TERRITORIAL ACQUISITION. § 53 sage to Congress, it had been quietly communicated by Sec- retary John Quincy Adams to Russia, and Russian coloniza- eign pressure. The disturbances which have appeared in certain por- tions of that vast territory have proceeded from internal causes, which had their origin in their former Governments and have not yet been thoroughly removed. It is manifest that these causes are daily losing their effect, and that these new States are settling down under Govern- ments elective and representative in every branch, similar to our own. In this course we ardently wisli them to persevere, under a firm con- viction that it will promote their happiness. In this, their career, how- ever, we have not interfered, believiug that every people have a right to institute for themselves the government which, in their judgment, may suit them best. Our example is before them, of the good effect of which, being our neighbors, they are competent judges, and to their judgment we leave it, in the expectation that other powers will pursue the same policy. The deep interest which we take in their independence, which we have acknowledged, and in their enjoyment of all the rights inci- dent thereto, especially in the very important one of instituting their own Governments, has been declared, and is known to the world. Separated as we are from Europe by the great Atlantic Ocean, we can have no concern in the wars of the European Gloveruments nor in the causes which produce tliem. Tlie balance of power between them, into whichever scale it may turn in its various vibrations, cannot affect us. It is the interest of the United States to pi*e- serve the most friendly relations with every power and on condi- tions fair, equal, and applicable to all. But in regard to our neighbors our situation is different. It is impossible for the Eu- ropean Governments to interfere in their concerns, especially in those alluded to, which are vital, without affectin? us ; indeed, the motive which might induce such interference in the present state of the war between the parties, if a war it may be called, would appear to be equally applicable to us. It is gratifying to know that some of the powers with whom we enjoy a very friendly intercourse, and to whom these views have been communicated, have api)eared to acquiesce in them." Richardson's Messages and Papers of the Presidents, Vol. II., pp. 259, 260. THE MONROE DOCTRINE. It is an absolute impossibility to successfully attempt to write upon any branch of the political history of the United States without making more or less extended reference to the original announcement of the Monroe Doctrine and the subsequent application thereof. The famous enunciation, although contained in a few brief paragraplis of an annual message of one of the Presidents, hns been the basis of hundreds of ar- ticles, speeches, and even entire volumes which have been devoted to discussing "the origin, meaning, and application of the Monroe Doc- trine " ; the last sentence is quoted as it is the title of a brochure upon the subject published by Professor John Bach McMaster in 1896. Nor 95 § 53 TREATY-MAKING POWER OF THE U. S. [CH. H. tion upon the Pacific Coast was thenceforth confined to its then existing limits. ^ § 53. I ence between Secretary Adams and 1 See references to correspond- I our Minister to Russia, p. 97, post. has this discussion been confined to Americans, or to the United States; reference to it will be found in nearly all of the works on international law; and varied opinions have been delivered in regard to it by Ameri- can, English and Continental authorities. Tbequesticm whether or not the Monroe Doctrine actually exists and is as applicable to-day to similar cases, as it was in 1823, lias been presented to the American people on several occasions. One of these was in De- cember, 1895, when Mr. Cleveland's message and Lord Salisbury's letter in regard to the Venezuela boundaiy brought the issue forward in a more practical manner than it had been presented for many years. In the brochure above referred to Professor McMaster said: "The crisis is certainly a serious one, and an examination of these views is not untimely. The hour has come for the people of the United States to decide once for all whether there is or is not a Monroe Doctrine. If there is, it should be stated as clearly and precisely as possible. If there is not, then it becomes us to say so frankly and at once." Since that time if any answer has been given to Professor McMaster's question it certainly i.s to the effect that the Monroe Doctrine does exist; that it is recognized as existing not only by the people of the United States, but also by the governing powers of other nations; and also that it has been reannounced, and so reaccepted, as "the traditional policy of the United States in regard to affairs of the Western Hemi- sphere" as was evidenced by the reservation under which the United States acceded to The Hague Treaties. (§58 post and footnotes thereto containing extract from Holl's Peace Conference at The Hague. ) The Monroe Doctrine, properly so-called, ever since December 2, 1823, when it was formal ly announced ( in the form above quoted ) in the seventh annual message transmitted to Congress by President James Monroe, was not the formulation of any new discovery of the political rights and power of the United States, but was the enunciation of principles which had already been adopted by the administration and which had been com- municated to the other powers, who had acknowledged them as reason- able and proper in view of the unique position which the United States then occupied in this hemisphere, which it has ever since occupied, and which it will continue to occupy so long as the American people them- selves recognize the wisdom and justice of the policy, our right to as- sert which no other power dares to directly deny, and few even dare to indirectly question. It would be far beyond the scope of a footnote to give even a brief re- view of the causes leading up to the announcement of the Monroe Doc- trine and of the occasions on which it has been applied since it was first uttered as an effective warning of " hands off " to the allied powers who were then masquerading under the gwasi-religious, but wholly hypo- critical guise of the Holy Alliance. A few dates and facts will be collated, 96 CH. II. J SOVEREIGNTY AND TERRITORIAL ACQUISITION. § 54 § Si. England, Central and South America, and tiie Mon- roe Doctrine. — Uuiiug the fifties, wlien Engiaud's protecto- and references given to the original documents, and to the writings of those who have discussed the subject at length. I. ANNOUNCEMENT OF THE MONBOE DOCTKINE. The Monroe Doctrine cannot be understood, nor can its full force and effect be appreciated without a thorough knowledge of the political conditions existing in the first quarter of the nineteenth century in Europe and America, both North and South. The doctrine as enunciated in President Monroe's message was neither new nor unfamiliar, nor was it announced without ijremonitiou and warnings. It had been foreshadowed in the President's annual message of the year previous, as appears by the paragraph quoted from the message of 1822, as well as in the correspondence which John Quincy Adams as Secretary of State had conducted with Kussia in regard to Russian colonization on the northwest Pacific coast, and with Eugland in regard to the recognition of the South American Republics, over which Spain first claimed dominion, although she could not exei'cise it. (See Pro- fessor Snow's article and Jolin Quiucy Adams' diary.) The attitude of the European Powers in regard to those Republics and their relations with Spain forced the United States into taking a corre- sponding attitude; it is to the lasting credit of the United States that, earlier than any other country, it enacted strict neutrality laws and vigorously enforced them; in fact, the neutrality laws of 1190, 1818, and 1838 were not only the first crystallization into statutory form of the principles of neutrality, which had been recognized as elements of in- ternational law, but they have been taken as the models for the neutral- ity laws of many other countries. (See also §§ 5281 etseq. U. S. Rev. St.) The neutrality of the United States in the Spanish-American wars had been maintained at great cost, and in spite of the sympathy which a majority of the people felt towards our struggling and weaker sisters who were following in our own footsteps and whose desires for free- dom as a general rule found utterance in proclamations which were simply paraphrases of the Declaration of Independence. No one championed the cause of these junior members of the Amer- ican family of republics so earnestly or as ably as Henry Clay, whose speech in the Senate of the United States on March 2.5, 1818, in favor of recognizing the Republics of Buenos Ayres and of La Plata, is not only one of the most eloquent addresses ever delivered by that gifted states- man, but one which ranks among the masterpieces of American oratory. Neutrality was also ostensibly preserved by the European countries, but the emotions of the jieople were suppressed by governmental espio- nage and the sympathy of the governing powers was entirely with Spain. Alarmed by the rapid spread of republican tendencies in Europe as well as in America, " their Majesties, the Emperor of Austria, the King 7 97 § 54 TREAT Y-MAKI^'G POWEH OF THE U. S. [CH. II. rate of the Mosquito Coast and other portions of Central America created some anxiety in our minds, the Monroe of Prussia and the Emperor of Russia," met at Pai'is to consider some method of averting the further spread of the desire for liberty which by them was considered as a disease. On September 26, 1815, they signed personally an agreement which from its first invocatory clause, "In the name of the Holy and Invisible Trinity," and its final woi'ds, "this Holy Alliance," has ever since that date been known as the " Treaty of the Holy Alliance."'' The objects of this remarkable treaty, which, according to Capefigue, and as quoted by Professor Snow, is entirely in the handwriting of the Emperor Alexander, with corrections made by Madame Crudner, were stated in Articles 1, 2 and 3 as follows: " Article I. In conformity to the words of the Holy Scriptures, which command all men to regard one another as brethren, the three contract- ing monarchs will remain united, by the bonds of a true and indissol- uble fraternity; and, considering each other as compatriots, they will lend one another, on every occasion, and in every i>lace, assistance, aid, and support; and, regarding the subjects aud armies, as the fathers of their families, they will govern them in the spirit of fraternity with which they are animated, for the protection of religion, peace and jus- tice. "Article II. Therefore, the only governing principles between the above-mentioned governments and their subjects, shall be that of ren- dering reciprocal services; of testifying, by an unalterable beneficence, the mutual affection with which they ought to be animated ; of consider- ing all as only the members of one Christian nation, the three allied powers looking upon themselves as delegated by Providence to govern three branches of the same family, to wit: Austria, Prussia, aud Russia, confessing, likewise, that the Christian nation, of which they and their people form a part, have really no other sovereign than Him to whom alone power belongs of right, because in Him alone are found all the treasures of love, of science and of wisdom, that is to say, God, uur Di- vine Saviour, Jesus Christ, the word of the Most High, the word of Life. " Their Majesties, therefore, recommend, with the most tender solici- tude, to their people, as the only means of enjoying that peace which springs from a good conscience, and which alone is durable, to fortify themselves every day more and more in the principles and exercise of the duties whicli the divine Saviour lias pointed out to us. "Article III. All powers which wish solemnly to profess the sacred principles which have delegated this act, and who shall acknowledge how important it is to the happiness of nations, too long disturbed, that these truths sliall henceforth exercise upon human destinies, all the influence which belongs to them, shall be received with as much readi- ness as affection, into this holy alliance.'''' Other Continental Powers were asked to accede to the treaty: on No- vember 22, 1822, an additional secret treaty was entered into at Verona by representatives of Austria, France, Prussia and Russia, in which the 98 CH. II.] SOVEKEIGNTY AND TERRITORIAL ACQUISITION. § 54 Doctrine was asserted, with the desired, eflfect that the pro- tectorate was withdrawn, although that result was not ac- vague expressions of the Treaty of Paris of 1815 were expressed in a some- what more praciical form. This was signed on behalf of tlieir respective sovereigns by four of the most famous diplomats that Europe. has ever known, to wit: Met- ternich for Austria, Chateaubriand for France, Bernstet for Prussia, and Nesselrode for Russia. The original treaty to provide for the peace of Europe had been signed at Cliaraout, France, on Marcli 1, 1814. England, Austria, Russia and Prussia were the signatory Powers; it was aimed largely at the great ascendency over Euroj)eau matters which France was tben aspiring to, and also to suppress the liberal ideas awakened by the French Revolu- tion and the wars of Napoleon. It was renewed at Vienna, March 25, 1815, at the commencement of the "One Hundred Days," just after Napoleon had landed on his return from Elba. It was again renewed at Paris, November 20, 1815, after the battle of Waterloo had forever removed Napoleon as a factor in European poli- tics. These last mentioned treaties, especially that of March, 1815, have some- times been erroneously referred to as the " Holy Alliance; " the com- bination existing under that title, liowever, was confined to the treaties of Paris of September, 1815, and of Verona of November, 1822. The treaty of November 20, 1815, provided for frequent congresses of the European Powers to regulate the affairs of Europe; pursuant thereto a Congress was held at Aix-la-Chapelle, in October, 1818. Great efforts were made by the Continental Powers to induce Great Britain to join in the " Holy Alliance," but the terms were too vague, and as the Duke of Wellington told the Emperor Alexander, there was no definite basis which justified the sovereign of Great Britain in acceding to it in such manner that his action would be understood or ratified by Parlia- ment. Meanwhile, however, Louis XVIII. joined the alliance on behalf of France, and many secondary Powers of Europe also acceded to the treaty. Thus the whole of continental Europe was a unit in sustaining mo- narchical institutions; in 1823, after the Kings of Spain and Portugal Iiad been restored to their thrones, principally through French intervention, the question of aiding Spain in a last effort to reconquer her rebellious provinces in America was brouglit up and a meeting of the Powers to consider tlie advisability of joint action in that respect was proposed. It was this proposition, the knowledge of which was acquired by the Monroe administration, that furnished the occasion for announcing the principles by which this country would be guided in case the Powers of Europe united in intervening in the contest between Spain and her provinces, in regard to which all of those Powers, as well as the United States, had up to that time remained neutral. Separate contests were being waged for independence in Venezuela, New Guiana, Mexico, Chile and Peru. It would be interesting to review 99 ^ 54 TIlEATY-iMx\.KmG POWER OF THE U. S. [CH. II. coinplished without a muttered protest.^ In 1896, Lord Salisbury expressed bis doubts as to our right to interfere pp. 217 et seq. of Lindley Miller Keasbey's book on the Nicaragua Canal aud the Monroe Doctrine, G. P. Putnam, 1896. See also ref- erences in footnote 1 to § 52 of this chapter, page 103. §54. 1 Central American affairs and the Enlistment Questiou, Washington, 1856; see also other congressional documents relating to this subject referred to in Chapter XI. entitled The Central An;erican Imbroglio, these wars for independence — to recount the deeds of valor and patriot- ism of Miranda, Bolivar, San Martin and the other heroes struggling for liberty in South America, but this is not the place for such an extended history. We can only consider the effects of those wars as they affected our political and diplomatic relations with the other Powers. For an interesting history of these wars the reader is referred to Hezekiah But- terwurth's Political History of South America (N. Y., Doubleday & 3Ic- Clure, 1898), which also contains a bibliography which will greatly aid any one desiring to pursue this branch of the subject in more extended research. The result of the announcement that the United States would take up the defence of the South American Republics in case the Euro- pean powers abandoned their position of neutrality, had the desired effect. England recognized the Republics as well as the United States, and before long commercial and diplomatic relations were established which have ever since been maintained with occasional, but fortunately n<»t serious, interruptions. The announcement was received with satis- faction not only in the United States, but also in England. In fact. Canning, who whs then in the Foreign Office of Great Britain, claimed to have originated the idea himself aud to have urged the announcement through Mr. Rush, our then minister to England; he is even credited with having said that he called the New World into existence to redress the balance of the Old. Undoubtedly he greatly favored the announcement and was glad of the opportunity of recognizing the Republics. Both Professor Snow aud ex-Secretary of State, John W. Foster (A Century of American Diplo- macy, 1900, Chapter XII., on The Monroe Doctrine) have shown that the Monroe Doctrine was essentially of American origin and American con- summation. Mi\ Foster says in regard to effect of the announcement, and as to Mr. Canning's connection therewith (on pp. 447-449) as follows: " While the declaration is very broad in its application, it is very pre- cise and restricted as to its cause. It is America for the Amerfcans, because otherwise (the peace and safety of) the United States would be endangered. " President Monroe might have communicated this declaration to the allied powers in the usual diplomatic form, through the Department of State, to our Ministers at the various European capitals, but he wisely adopted the form of its promulgation in his annual message to Congress. It thuS' became a notice, not to the Holy Alliance only, but to the whole world, of the policy of the United States. 100 CH. II.] SOVEREIGNTY AND TERHITOIMAL ACQUISITION. § 54 with England's arbitrary occupation of the disputed territory between Venezuela and British Guiana ; the question how- "Few, if any, official utterances of the century have had such general and lasting influence. When the Message was published in London it received universal commendation. Said one of tlie journals: ' We shall hear no more of a Congress to settle the fate of the Soutli American States;' another: 'It is worthy the occasion and of the people destined to occupy so large a space in the future liistory of the world.' Mr. Can- ning's biographer, in recording the effect of its publication in Europe, says that, coupled with the refusal of England to take part in the pro- posed Congress to discuss Spanish-American affairs, it effectually put an end to the project. Mr. Brougham, the English statesman, said: 'The question with regard to South America is now disposed of, or nearly so, for an event has recently happened than which no event has dispensed greater joy, exultation, and gratitude over all the freemen of Europe; that event, which is decisive on the subject in respect of South Amer- ica, is the message of the President of the United States to Congress.' It is further reported that ' the South American deputies in London were wild with joy, and South American securities of every sort rose in value.' " The manner in which it was received in the United States was de- scribed by Mr. Webster, in a speech delivered in the Senate three years later, as follows: ' It met, sir, with entire concurrence and hearty appro- bation of the country. One general glow of exultation, one universal feeling of gratified love of liberty, one conscious and proud perception of the consideration which our country possessed, and of the respect and honor which belonged to it, penetrated nil bosoms.' (3 Webster's Works, 178. ) An undue share of credit has been assigned to Mr. Canning for the promulgation of the Monroe Doctrine, and to him has even been ascribed the origin or first suggestion of the idea. But it has been seen that fifteen years before. President Jefferson had set forth the policy in much broader terms than those contained in Canning's proposal to Rush. The published diplomatic correspondence shows that Secre- tary Adams was fully informed as to the designs of the Holy Alliance, and that six months before that proposal was broached he had given instructions to our Minister in Spain to make known at the proper time that our government would oppose any forcible intervention in Amer- ican affairs or the transfer of any of the Spanish possessions to the European powers. Canning's proposal went no further than a protest against the transfer of any of the colonies to other powers, which was ranch narrower than Monroe's message; and the correspondence makes it plain that Great Britain was wholly influenced by a desire to retain and enlarge its trade and by its jealousy of France." See also, as to effect of announcement and extracts from European publications. Professor McMaster's Origin, Meaning and Application of the Monroe Doctrine, Philadelphia, 1896. The Monroe Doctrine has been asserted on numerous occasions be- tween tha time when it was first enunciated as a principle of American international diplomacy until its recent reaffirmance at The Hague un- 101 § 54 TREATY-MAKING TOWEE OF THE U. S. [CH, n. ever was finall}^, on our insistence, referred to the Arbitra- tion Tribunal, which has recently rendered its award, and der the style of " Traditional policy of the United States in regard to American affairs." The occasions upon which it has been asserted can be divided into two classes. First, when it has been asserted in regard to the efforts of European powers to obtain a foothold or to increase their colonial possessions in North, South or Central America; second, when it has been asserted in legard to the relations between the United States and other republics of the Western Hemisphere, and the right of the United States, as the most powerful Government in America, to regulate af- fairs for the purpose of maintaining peace and averting the evils of war. A few of these instances only can be referred to in this note. The reader is referred for a more detailed history of the application of the Monroe Doctrine to the authorities referred to at the end of this note; special reference is made at this point to Professor Freeman Snow's Treatise on American Diplomacy, published in 1894, over two hundred pages of which are devoted to a critical review of the Monroe Doctrine in its various aspects both as to origin and application, and which has greatly aided the author in making his own investigations in regard to this subject. THE PANAMA CONGKESS. Within a vei-y brief period after the Monroe Doctrine was enunciated occasions arose for its practical application. In 1826 invitations were extended by some of the South American Republics to the United States to meet representatives of the other Republics in a Congress which was to be held at Panama to effect a general union of all the Republics. It was suggested that the Congress would consider, amongst other things, the desirability of " combining the forces of the Republics, to free the Islands of Puerto Rico and Cuba from the yoke of Spain ... to take measures for joining in a prosecution of the war at sea and on the coasts of Spain, and to determine whether these measures should also be extended to the Canary and Philippine Islands." These objects were wholly beyond the objects, desires or rights of the United States, and were entirely inconsistent with one of the other objects stated in the call for the Congress; to wit, " to take into consideration the means of making effectual the declaration of the President of the United States, respecting any ulterior design of a foreign power to colonize any por- tion of this continent, and also the means of resisting all interference from abroad with the domestic concerns of the American Governments." President John Quincy Arlams, Mr. Monroe's successor, however ac- cepted the invitation and stated in a message to Congress that ministers on the part of the United States " would be commissioned to attend at those deliberations and to take part in them so far as may be compatible with that neutrality, from which it is neither our intention nor the de- sire of the other American States that we should depart." The president had power to appoint commissioners, but the appropria- 102 CH. n.] SOVEREIGNTY AND TERRITORIAL ACQUISITION. § 54 thus amicably settled a question which for a quarter of a century has threatened from time to time to plunge at least three countries into war.^ 2 See reference to Lord Salis- 1 bury's letter in footnote 1 to § 52, I pages 107-8. tion for their expenses had to be made by Congress. When the special message was sent to the Senate nominating Richardson C. Anderson and John Sergeant as envoys to the Congress, a resolution was at once of- fered as follows: "-Resolved, That it is not expedient at this time for the United States to send any ministers to the Congress of American nations assembled at Panama." While this resolution was pending in the Senate, the following reso- lution was introduced in the House: " Resolved, That in the opinion of this House, it is expedient to appropriate the funds necessary to en- able tlie President of the United States to send ministers to the Con- gress at Panama." The appropriation finally passed Congress, and commissioners were appointed; on account of the delay, however, our representatives did not actually participate in the meeting. The Congress met at Panama, but without accomplishing any actual results; it adjourned to meet at Tacubaya the following year, but no adjourned meeting was held, and as Professor Snow says in concluding his chapter on this episode, " Thus ended the first attempt to form an alliance of American states. The Monroe Doctrine was forgotten for the time; and the Spanish- Americans were left to work out their destiny in their own way, and to acquire by long training in the school of experience the cai^acity for self-government which they lacked at that time." The details of the entire history of the Panama Congress are very interesting, and, according to a note in Professor Snow's article ( page 312) the following documents contain a complete history of the conference. "The documents and details of the Panama Congress are given in full in the 4th volume (Historical Appendix) of the proceedings of the International American Conference. See also: Lyman's Diplomacy of the United States, II., 467; American Review and Whig Journal, Janu- ary, 1840; A. W.Young: American Statesman, 352; Am. State Pap. VI., 834-910; Benton's Debates, VIIL; Benton's View,!.; Webster's Works, III., 178; Niles's Register.'" OTHER CONGRESSES OF AMERICAN REPUBLICS. There have been a number of American congresses since the attempt to hold one in 1825-26. Professor Snow refers to them as follows : ( 1 ) The Congress of Lima, 1847; (2) the Continental Treaty of 1856, which to some extent showed " a spirit of hostility to the United States," resulting from the Walker expeditions into Central America; (3) the Congress of Lima, 1864; (4) proposed Congress of Panama, 1881; (5) the proposed Congress at Washington, 1882; the International American Conference, 18fl0. 103 § 55 TREATY-MzVKrNG POWER OF THE U. S. [CH. II. § 55. Spain, Cuba, and the Monroe Doctrine. — In 1852, when we had reason to suspect that Spain contemplated a TKANS-ISTHMIAN COMMUNICATIONS AND THE MONKOE DOCTKIXE. The Mouioe Doctrine has always been asserted by the United States in regard to the right of transit over the Isthmus of Panama and through the territory of Nicaragua, and in fact generally as to any trans-Isth- mian communication. Reference to this will be found in Professor Snow's book, page 326, in Lindley Miller Keasbey's Xicanigua Canal and the Monroe Doctrine, ex-Secretary of State John W. Foster's Century of American Diplomacy, and Tucker's Monroe Doctrine. In connection with trans-Isthmian communication, however, so far as Great Britain is concerned, the Clayton-Bulwer treaty of 1850 is con- sidered by some as a modification of the Monroe Doctrine; but al- though that treaty created a joint protectorate between this country and Great Britain as to a trans-Isthmian canal, under certain then ex- pect-ed conditions which up to this time have never materialized, it did not weaken the right of the United States to prevent the extension of British dominion in Central America, as was evidenced by the firm position which was asserted and maintained in regard thereto by Mr. Webster. Particular reference in this respect is made to Mr. Keasby's chapter "the Central American Imbroglio," in which he says that the Monroe Doctrine was asserted with the result that Great Britain was obliged to withdraw from her protectorate over the Mosquito Coast. See also the history of Central American Complications with Great Britain in Government Document, 1856, Central American Affairs and the Enlist- ment Question. EELATIONS WITH CUBA. The relations of the United States and Cuba have always been more or less affected by the Monroe Doctrine. In 1852 France and England suggested that those powers and the United States should enter intc) a joint disavowal of ever intending to acquire the Island of Cuba; this the United States refused to do. On the contrary, those powers were informed that events might necessitate the acquisition of Cuba by the United States, but whether that were so or not, under no circumstances would this country permit any other country to take possession of that island. On December 1. 1852, Secretary of State Edward Everett, wrote identic notes to Great Britain and France, in which he expressed the position of the United States as follows (1 Wharton's Digest, § 60): " The United States, on the other hand, would, by the proposed con- vention, disable themselves from making an acquisition which might take place without any disturbance of existing foreign relations and in the natural order of things. The Island of Cuba lies at our doors. It commands the approach to the Gulf of Mexico, jrhich washes the shores of five of our States. It bars the entrance of that great river which 104 CH. 11.] SOVEREIGNTY AND TERKITORIAL ACQUISITION. § 55 transfer of Cuba to some other power, we gave notice at once that no such transfer would be permitted.^ On the and International Kelations, by James Morton Callahan, John Hop- kins Press, 1899. §55. iFor an extended history of the foreign relations of the United States affecting Cuba, see: Cuba drains half the North American continent, and with its tributaries forms the largest system of internal water communication in the world. It keeps watch at the doorway of our intercourse with California by the Isthmus route. If an island like Cuba, belonging to the Spanish Crown, guarded the entrance of the Thames and the Seine, and the United States should propose a convention like this to France and England, those powers would assuredly feel that the disability assumed by our- selves was far less serious than that which we asked them to assume. The opinions of American statesmen, at different times and under vary- ing circumstances, have differed as to the desirableness of the acquisi- tion of Cuba by the United States. Territorially and commercially it would in our hands be an extremely valuable possession. Under cer- tain contingencies it might be almost essential to our safety. Still for domestic reasons, on which in a communication of this kind it might not be proper .to dwell, the President thinks that the incorporation of the island into the Union at the present time, although effected with the consent of Spain, would be a hazardous measure; and he would con- sider its acquisition by force, except in a just war with Spain, should an event so greatly to be deprecated take place, as a disgrace to the civili- zation of the age." (Mr. Everett, Sec. of State, to Mr. Crampton, Dec. 1, 1852, MSS. Notes Gr. Brit. See Mr. Everett and the Cuban Question, by Mr. Trescot, 9 South, Quar. Eev., new series, April, 1854, 429. For Mr. Everett's views in full, see 1 Wharton's Digest, § 72). Mr. Everett, on December 3, 1852, wrote again to Mr. Crampton as follows: "To enter into a compact with European powers to the effect that the United States, as well as the other contracting powers, would dis- claim all intention, now or hereafter, to obtain possession of Cuba, would be inconsistent with the principles, the policy, and the traditions of the United States." 1 Wharton's Digest, § 60. (Mr. Everett, Sec. of State, to Mr. Crampton, Dec. 3, 1852, MSS. Notes, Gr. Brit; see also 1 Whar- ton's Digest, § 72. ) See also the authorities cited in section 60 of Wharton's Digest under the head of Intervention in Cuba, including extract from President Fil- more's ihird annual message in 1852. As to the present relations of Cuba and the United States and the effect of the Monroe Doctrine thereon, see §§ 100 et seq., chap. Ill, post. MEXICAN INTERVENTION. One of the most notable instances of the application of the Monroe Doctrine was in 1861-i865 during which period Louis Napoleon at- tempted to establish a monarchy in Mexico under French protection. 105 § 55 TREATY-MAKING POWER OF THE U. S. [CH. U. other hand, however, when France and England asked us to unite with them in a mutual declaration that all of the England, Spain and France had claims against Mexico amounting, pos- sibly, to a million dollars, but the French bankers held bonds which had been issued to the amount of fifteen millions, although, comparatively, only a trifling sum had been advanced upon them. Mexico refused to pay the debt, and in 1861 the three Powers signed a convention by which they agreed to exercise coercive measure to en- force the payment of their debts. Article 2 of the convention was as follows: "Art. II. The high contracting parties engage not to seek for them- selves, in the employment of the coercive measures contemplated by the present Convention, any acquisition of territory, nor any special ad- vantage, and not to exercise in the internal affairs of Mexico any influ- ence of a nature to prejudice the right of the Mexican nation to choose and. to constitute freely the form of its government." The War of the Rebellion was raging at that time, but even in its crippled condition, the Government of the United States remained un- changed in its adherence to the Monroe Doctrine; " From the moment " as stated by Tucker, " when intervention seemed probable, explanations were demanded of France, and the assurance was given that her sole purpose was the enforcement of the claims of the subjects of the Em- peror. During the entire period of the French occupation of Mexico, the Government of the United States recognized only the Government of Juarez, and after the termination of the Civil War in the United States the Government at Washington was more pronounced than ever in warning the Government of France of the consequences likely to follow the prolonged stay of the French troops in Mexico." This attitude of the United States was necessitated by the attempt on the part of France to establish an empire with a monaachical form of government in Mexico; in fact, the placing of Maximilian upon the throne was not for the purpose of obtaining the payment of a debt to France, but for the purpose of establishing in America an ally of France. England and Spain withdrew from the attempt to destroy republican institutions in Mexico, and thus left the matter entirely in the hands of France. The final result of the opposition asserted by the Government of the United States, as communicated by Secretary Seward to the French Government, was that France withdrew from Mexico; on the 5th of April, 1866, it was announced that the French troops would evacuate Mexico, and in a little less than a year from that date they all departed. While this matter was entirely settled through diplomatic correspond- ence, there is no doubt that the fact that General Sheridan, whose repu- tation as a military commander was as well known and respected in France as it was in the United States, was at the head of an army of veterans of the Civil War, encamped in the vicinity of Mexico; although there is nothing in the records of the War Department or the State De- partment to connect the exact causes of his location with the French 106 CH. II.] SOVEREIGNTY AND TERRITORIAL ACQUISITION. § 55 uniting powers disclaimed any intention of ever acquiring that island, we promptly declined, declaring that although troops in Mexico, that location might have proved to be very fortunate for the United States, had it become necessary to use our military forces in order to enforce our rights under the Monroe Doctrine. In speaking of the results of the Mexican episode. Sir Edward S. Creasy, an eminent English authority on international law, says at page 122: " The United States (occupied by their own Civil War, which was then raging) did not actually send troops to oppose the French in Mexico, but they steadily refused to recognize Maximilian, or any government except a republican government in Mexico, and the lan- guage of their statesmen exhibited the fullest development of the Mon- roe Doctrine." VENEZUELA BOUNDARY DISPUTE WITH GREAT BRITAIN. The most notable instance of the enforcement of the principles enun- ciated by President Monroe was in 1895 and 1896, when President Cleve- land asserted that "the Monroe Doctrine finds its recognition in those principles of international law which are based upon the theory that every nation shall have its rights protected and its just claims enforced." This sentence was contained in his message transmitted to Congress on December 17, 1895, after Lord Salisbury had declared in a dispatch to the British Ambassador, and which had been left with the Secretary of State, that the Monroe Doctrine did not embody any principle of in- ternational law founded upon the general consent of nations. The exact words of Lord Salisbury will be found in his dispatch dated November 26, 1895, commencing at p;ige 563, part I. of the Foreign Relations' Report, 1895. In the course of his dispatch he declared that he would not be understood as expressing any acceptance of the doctrine on the part of Her Majesty's Government; in fact, he said: "It must always be mentiored with respect, on account of the dis- tinguished statesman to whom it is due, and the great nation who have generally adopted it. But international law is founded on the general consent of nations ; and no statesman, however etninent, and no nation, however powerful, are competent to insert into the code of international law a novel principle which was never recognized before, and which has not since been accepted by the Government of any other country. The United States have a right, like any otlier nation, to interpose in any controversy by which their own interests are affected ; and they are the judge whether those interests are touclied, and in what measure they should be sustained. But their riglits are in no way strengthened or extended by the fact that the controversy affects some teri'itory •which is called American. Mr. Olney quotes the case of the recent Chilean war, in wliiiOi the United States declined to join with Frniice and England in an effort to bring hostilities to a close, on account of the Monroe Doctrine. The United States were entirely in their right in de- clining to join in an attempt at pacification if they thought fit ; but Mr. Olney's principle that American questions are for American de- 107 § 55 TREATY-MAKING POWER OF THE U. S. [CH. U. "vve would not ])errait any other power to acquire or occupy it, we would not bind ourselves not to do so, as circumstances cision, even if it receive any countenance from the language of Presi- dent Monroe (whicli it does not), cannot be sustained by any reasoning drawn from the law of uations. "The Government of the United States is not entitled to affirm as a universal proposition, with lefereuce to a number of independent States for whose conduct it assumes no responsibility, that its interests are necessarily concerned in whatever may befall those States simply be- cause they are situated in the Western Hemisphere. It may well be that the interests of the United States are affected by something that happens to Chili or to Peru, and that that circumstance may give them the right of interference ; but such a contingency may equally happen in the case of China or Japan, and the right of interference is not more extensive or more assured in the one case than in the other." Lord Salisbury's instructions to Sir Julian Pauncefote, from which the above is quoted, were practically in reply to the instructions of Mr. Olney, then Secretary of State, to Mr. Bayard, our Minister in London, July 20, 181)5 (Foreign Relations, 1895, Part 1, page 545 ; pp. 558, 5G0 j, in which the following occurred : "The people of the United States have learned in the school of ex- perience to what extent the relations of states to each other depend not upon sentiment nor principle, but upon selfish interest. They will not soon forget that, in their hour of distress, all their anxieties and bur- dens were aggravated by the possibility of demonstrations against their national life on tlie part of powers with whom they had long main- tained the most harmonious relations. They have yet in mind that France seized upon the apparent opportunity of our civil war to set up a monarchy in the adjoining state of Mexico. They realize that had France and Great Britain held important South American possessions to work from and to benefit, the temptation to destroy the predomi- nance of the Great Republic in this hemisphere by furthering its dismem- berment might have been irresistible. From that grave peril they have been saved in tlie past and may be saved again in the future throuRh the operation of the sure but silent force of the doctrine proclaimed by President Monroe. To abandon it, on the other hand, disregarding both the logic of the situation and the facts of our past experience, would be to renounce a policy which has proved both an easy defense against foreign aggression and a prolific source of internal progress and pros- perity. "There is, then, a doctrine of American public law, well founded in principle and abundantly sanctioned by precedent, which entitles and requires the United States to treat as an injury to itself the forcible as- sumption by an European power of political control over an American state. The application of the doctrine to the boundary dispute between Great Britain and Venezuela remains to be made and presents no real difficult}'. Though the dispute relates to a boundary line, yet, as it is between states, it necessarily imports political control to be lost by one 108 CH. II.] SOVEEEIGNTY AND TERRITORIAL, ACQUISITION. § 55 might render it advisable, or even necessary, for us to take such action.^ acquire Cuba, December 1, 1852, and referred to in note 1 to § 52, page 104-5. 2 See dispatch of Secretary of State Everett in regard to pro- posed mutual disavowal of Eng- land, France and United States to party and gained by the other. The political control at stake, too, is of no mean importance, but concerns a domain of great extent — the British claim, it will be remembered, apparently expanded in two years some 33,000 square miles — and, if it also directly involve the command of the mouth of the Orinoco, is of immense consequence in connection with the whole river navigation of the interior of South America. It has been intimated, indeed, that in respect of these South American possessions Great Britain is herself an American state like any other, so that a controversy between her and Venezuela is to be settled between themselves as if it were between Venezuela and Brazil or between Venezuela and Colombia, and does not call for or justify United States intervention. If this view be tenable at all, the logical sequence is plain. " Great Britain as a South American State is to be entirely differen- tiated from Great Britain generally, and if the boundary cannot be settled otherwise than by force, British Guiana, with her own independ- ent resources and not those of the British Empire, should be left to settle the matter with Venezuela — an arrangement which very possibly Venezuela might not object to. But the proposition that an European power with an American dependency is, for the purpose of the M(mroe Doctrine, to be classed not as an European but as an American state, will not admit of sei'ious discussion. If it were to be adopted, the Monroe Doctrine would be too valueless to be worth asserting. Not only would every European power now having a South American colony be enabled to extend its possessions on this continent indefinitely, but any other European power might also do the same by first taking pains to procure a fraction of South American soil by voluntary cession, " The declaration of the Monroe message — that existing colonies or dependencies of an European power would not be interfered with by the United States — means colonies or dependencies then existing, with their limits as then existing. So it has been invariably construed, and so it must continue to be construed unless it is to be deprived of all vital force. Great Britain cannot be deemed a South American state within the purview of the Monroe Doctrine, nor, if she is appropriating Venezuelan territory, is it material that she does so by advancing the frontier of an old colony instead of by the planting of a new colony. The difference is matter of form and not of substance, and tlie doctrine, if pertinent in the one case, must be in the other also. It is not admit- ted, however, and therefore cannot be assumed, that Great Britain is in fact usurping dominion over Venezuelan territory. While Venezuela charges such usurpation, Great Britain denies it, and the United States, until the merits are authoritatively ascertained, can take sides with 109 § 56 TREATY-ISLVKIXG TOWER OF THE U. S. [CH. II. § 56. Louis Napoleon, Mexico, and the Monroe Doctrine. — In 1862, the Emperor Louis iiapoleon attempted to take neither. But while this is so — while the United States may not, under existing circumstances at least, take upon itself to say which of the two parties is right and which wroug — it is certainly within its right to de- maud that the truth shall be ascertained. Being entitled to resent and resist any sequestration of Venezuelan soil by Gi'eat Britain, it is neces- sarily entitled to know whether such sequestration has occurred or is now going on. Otherwise, if the United States is without the right to know and have it determined whether there is or is not British aggres- sion upon Venezuelan territory, its right to protest against or repel such aggression may be dismissed from consideration." The result of the Venezuela controversy was an adjustment between Venezuela and Great Britain referring the boundary dispute to an arbi- tration tribunal, which definitely defined the boundary line, giving a part of the disputed territory to Venezuela and a part to Great Britain; in a large measure the claims advanced by Venezuela and supported by the United States were justified, for, although, a larger amount of ter- ritory as to area was awarded to Great Britain, both sides of the mouth of the Orinoco River were included in the territory awarded to Vene- zuela, thus establishing one of the principal points contended for by Venezuela. THE MONROE DOCTEINE AND RECENT ACQUISITIONS. During the last three years the question has been raised, principally by those opposed to the acquisition of additional territory, that it is impossible for the United States to acquire territory in the Eastern Hemisphere, and also to maintain its traditional policy as expressed in the Monroe Doctrine in regard to affairs of the Western Hemisphere. The author considers that the acquisition of the Pliilippines and the Monroe Doctrine have absolutely no bearing upon each other. The message of President Monroe in which his doctrine was enunciated, de- clared that it was against the policy of the United States to interfere with the disputes of European powers in regard to European matters. At that time the European powers were not interested in Asiatic matters. Since that time, while the relations of the United States in regard to European matters, and the policy of non-intervention therewith may not have changed, and while it might be impossible to change that policy, and to intervene in European affairs, without altogether aban- doning, or to a great extent jeopardizing, our right to maintain the Monroe Doctrine, our I'ehttions with Asiatic countries are so entirely different that the Monroe Doctrine has absolutely no application thereto. The countries on the eastern side of the Pacific Ocean are nearer neighbors to America than they are to Europe, not only as to distance but also as to commerce. In a recent publication the Pacific Ocean has been described as a great American lake. (See Josiah Strong's Expan- sion, iSJ". Y., 1900.) The United States have a perfect right to protect their interests in the Eastern Hemisphere, to establish footholds therein, 110 CH. n.] SOVEREIGNTY AND TERRITORIAL ACQUISITION. § 56 advantage of the then weak and disturbed condition of Mex- ico to establish an Empire in America under French auspices or to acquire territory in payment of indemnity, otherwise uncollectible, without in any way either renouncing the Monroe Doctrine or inter- jecting itself into the affairs of Europe; the mere fact that European nations have acquired or attempted to acquire Asiatic territory, or to ex- ercise control over Asiatic governments, does not necessarily transform Asiatic affairs into European affairs. The enunciation of the M(mroe Doctrine never disclaimed the right which the United States always has had, and always will have, of exercising its sovereign rights wherever and whenever other sovereign powers can exercise similar rights of sovereignty. SOME OPINIONS OF PUBLICISTS. It is impossible to collate all the authorities upon the Monroe Doc- trine. A few only will be referred to. John W. Foster, as expressed in his Century of American Diplomacy, has already been referred to; Professor Theodore Dvvight Woolsey and his son. Professor Theodore Salisbury Woolsey, have expressed some doubt as to the principles of the Monroe Doctrine so far as the right to intervene merely because the territory is in the western hemisphere, although they sustain that right whenever such intervention is prejudicial to our material interests. Their views are expressed in section 48, Introduction to the Study of International Law by Theodore Dwight Woolsey (6th edition, revised by Theodore Salisbury Woolsey, X. Y., 1891), and in the chapter devoted to that subject in Theodore S. Woolsey's America's Foreign Policy (N. Y., 1898). Doctor Francis Wharton devotes sections 56a to 61a, pages 268 to 416 of volunae I. to a consideration of the Monroe Doctrine under the title, "III. Intervention of European sovereigns in the affairs of this continent disapproved. Monroe Doctrine." He refers to the original enunciation of the doctrine in sections 56a and 57; in the following sections he refers to subsequent applications of the doctrine in regard to Yucatan, Mexico, Peru, Cuba, Hayti, San Domingo and the Danish West Indies. There are numerous extracts from opinions of the Presidents, dis- patches and notes of Secretaries of State, and of the replies from foreign offices of their governments in regard to the Monroe Doctrine and its application. In regard to the Clayton-Bulwer treaty, he says on page 288: "The Clayton-Bulwer treaty is the only exception to the rule that the Gov- ernment of the United States will decline to enter into combinations or alliances with European powers for the settlement of questions con- nected with the United States." See also bibliography of Monroe Doc- trine contained in Gilman's Life of James Monroe, American Statesmen Series. On the other hand, some of the eminent French authorities on inter- national law have declared that the Monroe Doctrine cannot be consid- 111 § 56 TREATY-MAKING POWER OF THE U. S. [CH. II. and protection; in 1865, however, after our civil war was over, and we had time to devote, and military forces with ered in any light as a principle of international law, but that it is the mere expression of opinion of an American statesman. In this respect Alphonse Rivier says (Droit des Gens, Paris, 189ij, pp. 40-1-5, Vol. 1): § 88. La Doctrine de Monkoe. — "La politique d'intervention de la Sainte-Alliance a provoque une declaration importante du cinquieme president des £tats-Uuis, James Monroe, dans son message presidentiel due 2 SejJtembre, 1823. " D'apres cette declaration, les £tats-Unis d'Amevique ne s'ingereront pas dans les affaires des nations europeennes qui ont des colonies en Amer- ique; mais ils ne tolereront pas non plus que les Etats nouveaux, recon- nus par eux comme independants, soient en butte aux attaques d'fitats europeennes, et ils respousseront toute immixtion de I'Europe sur le continent americain. C'est la ce qu'on designe communement sous le nom de doctrine de Monroe. . . . " Le message coutient une autre declaration, motivee par les revendi- cations ou pretentions de la Fvussie dans le Nord de T Amerique. 'Les con- tinents americains, d'apres I'etat de liberte et d'independance qu'ils se sont acquis et dans lequel ils se sont maintenus, ne peuvent etre consi- derees a Tavenir comme susceptibles d'etre colonises par aucune puis- sance europeenue.' Ceci veut dire que le sol de I'Amerique n'est plus sans maitre, qu'une occupation nouvelle par un fitat d'Europe n'y est done pas concevable. " La doctrine de Monroe est une maxime ou regie de conduite, qui n'avait, dans I'origine, d'autre valeur que celle d'une opinion ou d'une resolution personelle de son auteur responsable, enoncee en quelque sorte ex cathedra. Les successeurs de James IMonroe ysoutrestes fide- les. John Quincy Adams, president a son tour. Fa proclamee derechef a propos du congres de Panama (1820), et les republiques de I'Ameri- que espagnole ont declare I'adopter au congres de Lima (1865). Maiselle n'a jamais fait I'objet d'une convention, a laquelle des Etats non amer- icains auraient consenti. II va sans dire qu'elle ne saurait avoir aucune sorte de force obligatoire pour I'Europe. Son principe ne fait point partie des principes du droit des gens. La pretention emise plus d'une fois par les £tats-Unis de I'imposer plus oumoins aux Etats europeens, est denuee de tout fondement juridique. " D'autre part, cette maxime n'implique pas, aiusi qu'on Ta cru parfois, une intention des £tats-Unis de se desinteresser de la politique geuerale de la Societe des nations, et il n'est point inutile de constater que tout en ecartant jalousement toute immixtion europeenne sur les continents americains, ils s'arrogent eux-memes le droit d'y intervenir partout et a tout propos, si bien qu'aujourd'hui ce qu'ils appellent la doctrine de Monroe est en realite F affirmation d'une pretention permanente des £tats-Unis d' intervenir dans les affaires de tons les autres Etats d' Amerique." Calvo devotes sections 1-47-167, pp. 284-300 of the first volume of his International Law (fifth edition, Paris, 1S96) to a history of the Mon- 112 CH. II.] SOVEREIGNTY AND TEEKITOKIAL ACQUISITION. § 57 wLiich to attend, to such matters. Secretary Seward explained the Monroe Doctrine to the Emperor, and French support was withdrawn from the ill-fated Maximilian, thus endins: the last attempt on the part of any European power to make a new foothold in the western hemisphere.^ § 57. Germany and Samoa. — Not under the Monroe Doc- trine, but simply on general principles we cried halt to Ger- iiumy in her efforts to acquire Samoa, and forced her to make an equitable arrangement with this country and Great Britain in regard to the control of that far-off Archipelago roe Doctrine as announced, its subsequent application and the opinions of publicists iu regard thereto. At the foot of pp. 248, 285 and 300 will be found three notes which refer to numerous authorities which he has consulted in preparing his matter. The authorities as they are collated in those notes are as follows: At the foot of page 284: " Wheaton, Elem., pte. 2, ch. 1, Sec. 11; Wheaton, Hist., t. 1, pp. 110-114; t. II, pp. 219-239, 252-260; Vattel, Le droit, livre II, ch. iv, sec, 54, 56, 57; liv. Ill, ch. iii. Sec. 50; Martens, Precis, Sec. 74; Phillimore, Com., vol. I, pte. 4, pp. 433-483; Kent, Com., vol. I, pp. 22, 23; Kluber, Droit, Sec. 51; HefE- tor. Sees. 44-46; Bluntschli, Le droit. Sec. 474; Manning, pp. 97, 98; Wildmann, vol. I, p. 47; Bello, pte. I, cap. i, Sec. 7; Riquelme, lib. I, tit. 2, cap. xxiv; Halleck, ch. iv, Sec. 4; ch. xxiv. Sec. 12; Huber, De jure, lib. Ill, cap. vii. Sec. 4; Pando, p. 74; Dolloz, Repertoire, V. Droit des gens, ns. 86 et seq. ; Verge, Martens, t. I, pp. 202 et seq. ; Berriat Saint-Prix, Theorie, pp. 164 et seq.; PinJieiro Ferreira, Vattel, iv. II, ch. iv. Sec. 50; Guizot, Memories, t. IV, pp. 4, 5; Pradier-Fodere, Vattel, t. II, pp. 27 et seq., 308; Ott, Kluber, Sec. 51, note c; Hautefeuille, Le principe de non-intervention; Funck Brentano et Sorel, Precis, ch. xi, Hall; int. law, p. 242." At the foot of p. .300: " Dana, Elem., by Wheaton, note 36; British and foreign State papers, V. I, pp. 662 et seq. ; v. VII, pp. 585 et seq. ; v. VIII, pp. 524 et seq. ; v. XI, pp. 4 et seq. ; v. XII, pp. 535 et seq. ; v. XIII, pp. 390 et seq. ; 483 et seq. ; V. XXXIII, pp. 198 et seq. ; United States laws, v. X, p. 995; Calhoun, Works, vol. IV, p. 454; Mackintosh, Works, vol. HI, pp. 433-478; Web- ster, Works, vol. Ill, p. 178; Torres Caicedo, Union, cap. xii, p. 63; Sarmi- ento, A discourse, p. 14; Sarmiento, Vida de Lincoln, int. p. xxiii; Las- tari. La America, cap. xiv, p. 130; Valiente, Beformas, p. 211; Gervinns, t. X, pp. 125 et seq. ; Ch. Calvo, America latina, periodo 1°, t. Ill, p. 338; periodo 3°; Alaman, t. V, pp. 815-819; Lawrence, Elem., by Wheaton, note 46; Buchanan, p. 276; Creasy, First platform. Sees. 303 et seq.; Woolsey, Introd. to the study of int. law. Sec. 74." §56. 1 See reference to Congressional documents and history of French 8 113 Intervention in Mexico in note 1 to § 52, page § 58 TREATY-MAKING POWER OP THE U. S. [cH. II. in the Pacific Ocean, which is of such strategic value to our merchant, and our naval, marine.^ Certainly, so far as international law is concerned, there is no doubt that it has been determined, by the consent of every nation of the world, that the right of acquisition of additional territory exists in every sovereign power, and that it exists paramountly in the United States. § 58. Monroe Doctrine and the Peace Conference at The Hague ; 1899. — As appears in the foot note to § 52, the Monroe Doctrine is an American enunciation, to which some other nations claim that they have never acquiesced ; the in- stances already cited, however, demonstrate that although almost every government has had the opportunity of pro- testing against its enforcement, they have all practically ad- mitted our right to assert it. In 1899, at the Peace Conference at The Hague, a treaty was prepared in which the United States joined, but in doing so made the following reservation : " Nothing contained in this Convention shall be so con- strued as to require the United States of America to depart from its traditional policy of not entering upon, interfering with, or entangling itself in the political questions or inter- nal administration of any foreign state, nor shall anything contained in the said Convention be so construed as to re- quire the relinquishment by the United States of America, of its traditional attitude toward purely American questions." The effect of this is that a treaty has been accepted by all the other signatory powers containing a declaration of the Monroe Doctrine as it has been adopted by, and made a part of, the traditional policy of the United States, and that all those Signatory Powers have recognized without j^rotest the existence of the policy, and the intention of the United States to adhere to it. §57. 1 Convention between the United States, Germany and Great Britain to adjust amicably the questions between the three governments in respect to the Samoau Group of Islands. Signed December 2, 1899; j Treaties in Force 1899, p. 551. ratified bv Senate January 16, 1900; | 114 ratifications exchanged and treaty proclaimed P'ebruary 16, 1900. 31 U. S. Statutes at Large, 56th Con- gress, 1st Sess. 1899-1900, appx. Treaties, p. 70. See other Treaties in regard to Samoan Islands: U. S. CH. n.] SOVEREIGNTY AND TERHITOIllxiL ACQUISITION. § 58 The history of this reservation, and some observations as to its effect, will be found in the Fifth Chapter of " The Peace Conference at The Hague," in which Mr. Frederick W. Holls, the able and efficient Secretary of the American Commis- sion, has perjnanently recorded the transactions of the Con- ference ; the extract from that interesting volume quoted in. the note to this section shows w^hat an important bearing the appending of that resei'vation to The Hague Treaty will always have upon our international relations.^ §58. ^ " Keservation by the Araerican Kepreseutative; Text of the Amer- ican Declaration; The Monroe Doc- trine; Tlie Declaration accepted; its importance. According to this Article every Signatory Power rec- ognizes a new international obliga- tion, as a duty toward itself and every other Signatory Power. Next to the establishment of the Perma- nent Court of Arbitration this Arti- cle undoubtedly marks the highest achievement of the Conference, for no doubt the establishment of the court would have been incomplete, if not nugatory, without this sol- emn declaration, which is undoubt- edly ' the crown of the whole work,' as it was declared to bo by one of the American representatives in the Committee on Arbitration. At the same time there was just one Power whose vital interests might be directly and unfavorably af- fected by this Article, if adopted without qualification, and that Power was the United States of America. The declaration, for which Mr. Holls made a reserva- tion in the Coiiiite cVExamen, and which was afterward carefully formulated, is forthe United States of America by no means the least important part of the entire con- vention, and reads as follows: • "'Nothing contained in this Convention shall be so construed as to require the United States of America to depart from its tradi- tional policy of not entering upon, interfering with, or entangling it- self in the political questions or internal administration of any for- eign state, nor shall anything coq- tained in the said Convention be so construed as to require the relin- quishment, by the United States of America, of its ti'aditional atti- tude toward purely American ques- tions.' "The adoption of the treaty with- out any qualification of Article 27, would undoubtedly have meant, on the part of the United States, a complete abandonment of its time- honored policy known originally as the Monroe Doctrine. This is not the place to discuss the merits of that policy, or the truth and wis- dom of that doctrine. It is, how- ever, a fact that the United States of America is determined more firmly than ever before in its his- tory, to maintain this policy and the Monroe Doctrine, in its later approved and extended form, care- fully and energetically. Not even in the supposed interest of univer- sal peace would the American peo- ple liave sanctioned for one moment an abandonment or the slightest infi-action of a policy which ap- peals to them as being founded, 115 §59 TREATY-MAKING TOWER OF THE U. S. [CH. II. ^ 50. Opposition to territorial expaiisiou from within, and uot from without. — The only voices which have been raised in opposition to the right of the United States to ac- quire and to govern territor}^ have come from within our own boundaries and uot from without. There has always been a faction which has opposed the extension of the boundaries of the United States. The Su- preme Court has, however, decided that the United States may constitutional!}' acquire territory by conquest, by treaty, b}' annexation and by discovery and the cases referred to in not only upon legitimate national desires and requirements but upon the highest interests of peace and progress throughout the world. To recognize the American Conti- nents as proper objects of any kind of European expansion, or iuter- ference on the part of one or more Powers, would not promote or in- crease the peace, prosperity, or happiness of a siagle human being; and assuming, in ever so small a degree the responsibility for the status of so large a part of the earth's surface, it is only fair that the great peace power of the West should not be required to interfere against its will in any other quarrel. Nor is any meritorious interest in the world unfavorably affected by this attitude of the United States — an attitude assumed and main- tained, not as a challenge, not boastfully toward Europe, nor patronizingly toward its sister States on the American Continent, but simply in pursuance of a wise and far-seeing recognition of ob- vious facts and their logical bear- ings. "The declaration was presented in the full session of the Conference on July 2.5, read by the Secretary of the Conference, and unanimously directed to be spread upon the minutes, and added to the Conven- 116 tion by a reference opposite the signatures of the American pleni- potentiaries. " The importance of this proceed- ing, so far as the United States of America is concerned, will readily be seen. Never before that day had the Monroe Doctrine been officially communicated to the representa- tives of all the great Powers, and never before was it received with all the consent implied by a cordial acquiescence, and the immediate and unanimous adoption of the treaty upon that condition. An express acceptance or recognition was, of course, impossible, but there can be no doubt that the declaration, as presented, consti- tutes a binding notice upon every Power represented at the Confer- ence, forever estopping each one of them from thereafter quoting the treaty to the United States Government in a sense contrary to the declaration itself. The great- est advantage of the latter, how- ever, is the fact that it leaves to the United States absolute and perfect freedom of action, and this, in view of the recent extension of American power, especially in the far East, is of incalculable impor- tance." The Peace Conference at The Hague, Holls, The MacMillan Co., 1900, chap. V. pp. 269, 272. PH. TT.^ SOVEREIGNTY AND TERRITOKIAL ACQUISITION. § 61 the appendix^ are so conclusive that they place the mat- ter beyond all controversy, so far as the legal elements are concerned ; in fact, it must be conceded at the present time that questions relating to annexation of territory and extension of the boundaries of the United States belong exclusively to the political departments of the government, and the judicial department has no control whatsoever thereover.^ ^ 60. Right to acquire territory based on nationality and sovereignty. — The right of the United States to acquire ter- ritory, and to govern it, is based upon the sovereign and national power which the government possesses and which has been sustained in all the cases cited in the notes under preceding sections ; in fact, if it were not for the complete na- tionality and sovereignty of the United States it would have been impossible for its Grovernment to have made the treaties under w4iich it acquired from other nations those great pos- sessions by which our territory has more than quadrupled since the power was asserted in the Declaration of Independ- ence that "as free and independent States they (the United States) have full power to levy war, conclude peace, con- tract alliances, establish commerce, and do other rights and things which independent states may of right do.'^ ^ §61. Power to govern acquired territory; the Insular Cases; 1901. ^Article lY, section 3, clause 2 of the Consti- tution declares that Congress shall have the power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States.^ Under this section it has been held that the Central Govern- ment has power to regulate all territory which the United States acquires, and that in doing so it has absolute and ple- nary powers, and is not limited in its legislation in the same §59. 1 See classified cases, p. 535, post. 2 As to matters within domain of judicial department or legislative department and rules of non-inter- ference by one with the other, see § 460, chapter XVI, Vol. II, post. §60. 1 The right of the United States to acquire territory was one of the questions involved in the Insular Cases, which will be discussed in the succeeding sections. The cases bearing on the subject are collected in the Insui.ak Cases Appendix at the end of this volume. §61. 1 "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property be- 117 ^ Gla TREATY-MAKING POWEU OF THE IT. S. [CH. n. manner as it is limited in its legislation in regard to matters affecting the States, or territory wholly under State jurisdic- tion. In a case decided in 1894 the Supreme Court held that, " by the Constitution, as is now well settled, the Uni- ted States, having rightfully acquired the Territories and be- ing the onh^ government which can impose laws upon them, have the entire dominion and sovereignty, national and mu- nicipal, Federal and State, over all the Territories so long as they remain in a territorial condition."^ The controversy as to whether the Constitution ex proprio vigore follows the flag, reached the Supreme Court in a con- crete form in the Insular Cases which have already been re- ferred to as pending before that Court and in which many questions were discussed, some of which have been settled, in regard to the extent of the limitations upon Congressional action in legislating for the territories, especially those re- cently acquired from Spain under the Treaty of Paris. § 61a. The Insular Cases; status of New Possessions. — These cases, so-called because the}" involved the status of the insular possessions acquired by the United States by treaty from Spain, and of the Hawaiian Islands annexed b}'' resolution of Congress of July 7, 1898, were argued before the Supreme Court of the United States during the October term of 1900. iSMne cases were argued, all but one of which Avere for refunds of customs duties exacted under the various tariff laws and orders either on goods brouo^ht from Porto Rico, the Philippines and Hawaiian Islands into other ports of the United States, or on goods brought from other ports of the United States into Porto Rico. The cases will be briefly considered in the order indicated in the notes hereto,^ lonjiing to the United States ; and nothing in this Constitution shall be so construed as to Prejudice any Claims of tlie United States, or of any particular State." U. S. Const. Art. IV, § 3, cl. 2. 2 Shivehj vs. Bowlby, U. S. Sup. Ct. 1894, 152 U. S. 1, p. 48, Gray, J., citing numerous cases. See also cases cited and collated in Ixsular Cases Appendix at end of this volume. 118 § ei«. 1 The titles to the Insular Cases, the Older in which they will be considered, and the points involved in each case are as follows (see 182 U. S. Reports when published): 1 (616). De Limavs. Bldicell. For the return of duties exacted under the Dingley act on goods brought from Porto Rico to Xew York after the ratification of the treaty and prior to the Foraker act. CH. II.] SOVEREIGNTY AND TERRITORIAL ACQUISITION. § 615 Opinions were delivered on May 27, 1901, in all of the cases except those involving the status of the Philippines and the validity of duties collected in Porto Rico under the For- aker Act.^ The cases were decided after most of this vol- ume was completed and " in plate." They, therefore, can only be referred to briefly at this point where a space was left in case the decisions were rendered before the volume was actually in press. They are more fully discussed at other points in this volume, and also in an appendix. § 611). The Insular Cases ; Porto Rico and the Dingley Act. — Two of the Insular Cases ^ were brought to recover duties on goods brouo-ht from Porto Rico to New York af- ter the ratification of the treaty of Paris,^ and prior to the 2 (616). Goetze vs. United States. Same. 3 (61c). Fotirteen Diamond Rings, Emil Pepke, Claimant, vs. United States. To recover goods brought from Manila to Chicago, seized for unpaid duties under the Diugley act. 4 {Qld). Grossman vs. United States. To recover duties exacted on goods brought from Hawaiian Islands after passage and approval of the resolution of annexation. 5 (61e). Dooley, Smith & Go. vs. United States, No. 1. To I'ecover duties paid in Porto Rico on goods brought from New York after the making of the treaty and prior to the Foraker act. 6 (61e). Armstrong vs. United States. Same. 7 (61/). Bownes vs. Bidwell. To recover duties exacted on goods brought from Porto Rico to New York under tiie Foraker act. 8 (61;/). Dooleij, Smith & Go. vs. United States, No. 2. To recover duties paid in Porto Rico on goods broiiglit from New York to Porto Rico under the Foraker act. 9 (61 /t). Huus vs. N. Y. and Porto Rico S. S.Go. To recover pilotage from an American steamship on the gi'ound that the vessel was subject to pilotage laws because engaged in foreign trade. After these cases had been ar- gued in the Supreme Court a reso- lution was passed by the House of Representatives on Februaiy 9, 1901, (the Senate concurred on Feb- ruary 1.5, 1901, ) pi'oviding for pi-int- ing twelve thousand copies of the records, briefs and arguments in all of the nine cases above referred to. The volume consists of 1075 pages of records, briefs, arguments and exhibits, besides an analytical index of 39 pages; for title in full of this volume see Insular Cases Appendix at end of this volume. 2 The cases which were not de- cided on May 27, 1901, were decided on December 2, 1901. The opin- ions of the court and the dissent- ing opinions are included in full in the Insular Cases Appendix (Supplement), pp. ^)6d, et seq., of this volume. They will be offi- cially reported in 183 or 184 U. S. Rep. §615. ^DeLima vs. Bidwell, and Goetze vs. United States, 182 U. S. 1. 2 The treaty was signed in Paris December 10, 1898; was ratified by 119 TREATY-MAKING POWER OF THE U. S. [CH. H. Foraker act.^ The duties were imposed and collected under the act of July, 1897,^ known as the Dingley act; the con- signees claimed that the merchandise was tree because Porto Rico was part of the United States ; the collector claimed that for tariff purposes Porto Rico remained a foreign coun- try until Congress legislated in regard to it. The duties were paid under protest. Some of the consignees proceeded un- der the Customs Administrative Act^ before the Board of General Appraisers, which upheld the Collector,^ and then appealed from the appraisers to the United States Circuit Court, which affirmed the appraisers;^ others brought com- mon-law actions against the collector personally on the ground that the exaction was illegal and a mere trespass.^ In this case the United States Circuit Court sustained the the President and Senate of the Uni- ted Slates February 6, 1899, and by the Queen Regent of Spain March 19, 1899 (30 U. S. Stat, at L. 1754); the ratifications were ex- changed and tlie treaty proclaimed at Washington April 11, 1899. 3 The Foraker act was passed April 12, 1900; it took effect May 1, 1900, 31 U. S. Stat, at L. p. 77, ch. 191. 4 The present tariff law under which duties are collected on mer- chandise, commonly known as the Dingley act, was passed July 24, 1897, 30 Stat, at L. p. 151, ch. 11. The first section is as follows: Be it enacted, &c. : That on and after the passage of this Act, un- less otherwise specially provided for In this Act, there shall be levied, collected, and paid upon all articles imported from foreign countries, and mentioned in the schedules herein contained, the following rates of duty which are, by the schedules and paragraphs, respectively presented, namely: (then follow the schedules). 5 The Customs Administrative 120 Law approved June 10, 1890, 26 U. S. Stat, at L. p. 131, provides for the method of recovering duties ille- gally exacted on imported merchan- dise by collectors. In the Insular Canes it was held that this law does not apply to duties illegally exacted on goods which are not imported in the sense that that word is used in the tariff laws; that is that only such goods as are brought from/or- eif/n ports are imported. See cases collated in Insular Cases Appen- dix on this point, especially Wood- ruff vs. Par/mm,U. S. Sup. Ct. 1868, 8 Wall. 123, Miller, J. •^ Protests of Mosle Brothers and John H. Goetze & Co., before the U. S. General Appraisers at New York, February 14, 1900; Opinion by Somerville, General Ap- praiser, 22018, G. A. 4658— Synop- sis of Treasury Decisions. ' Goetze vs. United States, U. S. Cir. Ct. S. D. N. Y. 1900, 103 Fed. Rep. 72, Townsend, J. 8 DeLima vs. George R. Bidwell, (collector of the Port of New York) originally brought in New York State Supreme Court and removed CH. n.] SOVEREIGNTY AND TERRITORIAL ACQUISITION. § 61b Collector's demurrer.^ A suit was also brought in the Uni- ted States Circuit Court to enjoin the Collector from contin- uing to exact duties under the Dingley Act after Porto Rico had become a part of the United States. The motion was denied and no.appeal was taken from the decision of the cir- cuit JLidge.^'' Appeals were taken to the Supreme Court in many of these cases. That court reversed the Circuit Court and the Board of Appraisers, and decided that territory could not be domestic and foreign at the same time ; that after the exchange of ratification of the treaty of Paris, Porto Rico ceased to be foreign, and therefore the Dingley Act did not apply to merchandise brought from ^orto Rico to New York, and that the duties collected under protest must be by defendant to United States Cir- cuit Court for Southern District of New York, 1900. ^ Pro forma, see record of Insular Cases. 10 Lascellesvs. Bklwell, U. S. Cir. Ct. S. D. K Y. 1900, 102 Fed. Kep. 1004, Lacombe, J. In this case the author of tliis volume appeared as attorney and counsel for the plain- tiffs who were dealers in Porto Rico sugar. Tlie injunction was asked on the ground that Porto Rico was no longer foreigo, but had become a part of the territory of the United States, if not upon the signing of the treaty, not later than the ex- change of ratifications. On the ar- gument the District Attorney asked the Court to decide preliminarily whether an injunction would be granted under any circumstances, in view of the provisions of the Cus- toms Administrative Law. The Court consented to consider that point before requiring the District Attorney to argue the question of Porto Rico's status. This case was therefore decided exactly as though the goods had been brought from Boston or Savannah. The entire decision as reported is as follows: j " March 19, 1900.— Motion denied on authority of Crimkshank vs. Bid- well, 176 U. S. 73. Complainant has an adequate, summary, and ex- peditious remedy at law under the Customs Administrative Act." No appeal was taken in this case. Un- der the decision in DeLimavs. Bid- loell, the ruling of the Circuit Judge was error as the Supreme Court decided that the Customs Adminis- trative Act does not apply to duties illegally exacted on goods which are not imported, i. e., not brought from a foreign country. The chief ground urged by the plaintiffs in Lascelles vs. Bidwell was that the continued exaction of duties by the collector on goods from Porto Rico had broken up the business of bring- ing sugar therefrom, and that for such continued loss of business there was no remedy at law, as no opportunity was given of paying the duties on goods coming from Porto Rico during the period of illegal exaction and it was impossible to measure the pecuniary loss sus- tained by the loss of business. This point does not appear to have been considered. 121 § 61./ TREATY-MAKING POWER OF THE U. S. [cH. n. refunded." Mr. Justice Brown delivered the opinion of the court, Chief Justice Fuller and Justices Harlan, Brewer and Peclvham concurred with him ; ^~ Mr. Justice McKenna wrote a dissenting opinion in which Justices Shiras and White concurred ; Mr. Justice Gray also delivered a brief dissenting opinion. § 61c. The status of the Philippines ; The Diamond Rin^ Case. — Although the Supreme Court decided that Porto Rico, on the exchange of ratifications of the treaty of Paris, became domestic territory, and duties on merchan- dise could not be collected under the Dingle}^ Tariff act as though it wei-e a foreign countr}'-, the Court withheld the decision in a similar case involving the dutiability of goods brought from the Philippine Islands for over six months.^ Fourteen diamond rings brought from Manila were seized in Chicago for nonpayment of duties. The owner filed a claim denying that the rings were dutiable, as they were brought from one part of the United States to another. The United States demurred to the claim and the demurrer was sus- tained.2 A writ of error was granted by the Supreme Court. In the DeLima case, which involved the status of Porto Rico, reference was made to the fact that not only had that island been ceded to the United States, but that the United States was in possession^ of the Island. \xi the Diamond Ring case the effect of the McEnery Resolution,* passed by the Senate the day after the treaty of peace was ratified, was considered at length and the Court held that it did not affect the construction of the treaty. § rAKrNO I'OWEll OF THE V. S. [CH. IT. § 70. Policy of expansion and acqnisitio!i sustained by courts and people. — This voice of opposition, as loud and as futile as ever, has been heard again within the last three years ; ante-bellum doctrines of narrow construction have been revived by those who have called themselves at one time anti-expansionists, and at another, anti-imperialists. It is not the intention of the author to discuss the political issues raised by the recent transactions of the National gov- ernment ; but he alludes to the manner in which the people have sustained the administration as ample evidence of the fact that it has been generally acknowledged, that as to all matters not exclusively within the jurisdiction of any State, the Central Government possesses every attribute of national- ity and sovereignty necessary to enable it to act for the general benefit of the people at large ; and also that probably during the past three years the element of nationality has had a greater development in the minds of our people, in their ca- pacit}^ as " Americans," than it has had since the pre-revolu- tionary days when the national spirit found expression in Patrick Henry's famous utterance : "Am I less a Yirginian because I am an American? " Again disavowing any intention to enter upon political discussion, the author feels that it must also be acknowledged that it has been owing to the wide scope of the treaty-maldng power, and the manner in which it has been exercised, by the United States from 1782, when our first treaty with France gave evidence of the great diplomatic ability of Franklin and his colleagues, to the present time when the treaty con- cluded at Paris with another power under the administra- tion of Mr. McKinley, also gave evidence of the skill and ability of American diplomats and established the fact, that this country has reached a preeminent position among the nations of the earth ; and that it must also be acknowledged that through the treaty-making power, and its proper and prudent exercise great advantages have been gained, which have inured to every State, and to citizens of every State and Territory. Waslibiirne of Wisconsin, Messrs. lated on pas:e 52 of Binger Her- Price of Iowa, Benjamin F. Butler mann's Louisiana Purchase, re- of Massachusetts and others col- ferred to supra, note 1, § 69. 134 CH. IT.] SOVERETGKTY AKD TERRITOEIAL ACQUISITION. § 71 Surely it is not only a selfish position, but one also un- founded in fact or reason, to contend that as the number of States and the area and power of the Union increases, each State diminishes in relative importance. Which one of the thirteen original States would to-day exchange its position as one of the great integral factors of the United States with its present proportions and power, for its relative position of a century ago ? The greater the Union — the greater the whole — the greater each one of its component parts; the United States never has increased, and never will increase, either in area, power or in any other manner, except for the common benefit of ever}^ State and of every citizen in his dual capacity as a citizen of his own State and of the Union, If to-day we hold a position in the world of greater strength and influence than we have ever held before — and who can doubt that such is the case — it is because we have overcome at last all petty prejudices and local jealousies, and liavo fully recognized and realized the great power and ability which is vested in our Central and National Government. § 71. Territorial Expansion the Cornerstone of Amer- ican prosperity.— The broad views of such men as Marshall and Story during the great constructive period, and of the men who have folloAved them in the later post-bellum period, through which we have been, and are now, passing, includ- ing such eminent jurists as Justices Field, Bradley, Harlan and Gray, have sustained and strengthened the hands of the National Government, and have made the enlargement of our territory not only possible, but have caused it to result in practical benefits for every State and also for the citizens of the States and of the territory acquired. In fact, the history of the United States has demonstrated that the policy of expansion and acquisition of territory, based as it is upon the foundation of sovereignty and nation- ality of the Central Government, is the cornerstone of the great structure of the American Union which has been reared thereon. The cornerstone must rest upon a sure foundation or the structure based upon it will collapse, but no structure built upon the cornerstone of our policy of expansion will ever 135 § 71 TREATY-MAKING POWER OF THE U. S. [cil. II. meet tliat fate, for the stone itself is securely supported upon the broadest and strongest foundation of thorough national- ity and complete sovereignty, indissolubly cemented with the highest degree of fearless and independent loyalty and patrif^tism, both national and federal. 136 CHAPTER III. THE NATIONALITY AND SOVEREIGNTY OF THE UNITED STATES AS RECOGNIZED BY OTHER SOVEREIGN POWERS. Section 72 — Subject, so far, viewed from internal standpoints. 73 — Subject now to be viewed from external standpoints. 74 — Same distinctions exist as to all federated powers. 75 — Kecent Insular cases de- cisions only involve these questions from in- ternal standpoints. 76 — Rule from external stand- points based on interna- tional law. 77 — Undivided sovereignty of governments exercising jurisiliction recognized by other powers. 78 — Central government of fed- erations the only one rec- ognized by foreign powers. 79 — Responsibilities as well as benefits result from this rule. 80 — Author's views briefly ex- pressed. 81 — Instances in which the ques- tion has arisen. 82 — The case of the " Caroline " ; Great Britain's position. 83 — McLeod's connection with the ^^ Caroline^'' ; Lis ar- rest by New York Slate. 84 — Great Britain's position ex- pressed by Mr. Fox. 85 — Mr. Webster's reply. 86 — Final disposition of tlie case; McLeod's acquittal. 87 — Federal statutes passed to meet similar cases. Section 88 — Anti-Spanish riots in New Orleans of 1851. 89 — Mr. Webster's position. 90 — Indemnity ultimately paid to sufferers. 91— The Mafia Riots in New Or- leans of 1891. 92 — Complications arising from the Mafia Riots. 93 — Action of the State courts of Louisiana. 94 — Mr. Blaine's position. 95 — Final result of the Mafia cases. 96 — The "jl/on/j/o" case; claims by tlie UnitedStates against other confederations; fed- eral responsibility for acts of state. 97 — Result of the arbitration. 98 — Decision of the Umpire. 99 — Moore's History of Interna- tional Arbitration. 100 — Importance of tlie " Montijo''' decision on the position of the United States. 101 — Different meanings of the term " United States " when considered from external and internal standpoints again referred to. 102 — Official definition of the word " country." 103 — Status of territory conquered by military forces of the United States. 104 — Fleming v. Page ; The Tam- pico Duty case; Chief Jus- tice Taney's opinion. 137 TREATY-MAKING POWER OF THE U. S. [CH. HI. Section 105 — The position reversed; The (Jastiiie case ; War of 1812 ; Justice Story's opiuion. 106— Status of Cuba. 107 — Status of Cuba involved in the JSfeely case; extradi- tion. SliCTIOX 108 — Uncertaiuty as to status of Cuba from internal stand- point. 109 — Xational unity as to all for- eign powers; a principle enunciated by the Con- gress of the Confederation and continued until the present time. § 72. Subject, so far, viewed from internal standpoints. The nationalit}^ and sovereignt}' of the United States has, up to this point been discussed from the standpoints of in- habitants of the United States, and of the States or territories thereof. Under such conditions, the extent thereof must be determined according to municipal and constitutional la\Y, as the same is administered in this country ; the sovereignty and reserved powers of the various States, as well as the constitutional limitations upon the Federal Government, must also be taken into consideration. § 73. Subject now to be viewed from external stand- points. — When, however, the nationality and sovereignty of the United States is considered from external standpoints, all of those internal shades of difference are entirely eliminated ; no matter how extensive the powers of the States may be as to internal matters they have but little, if an}', bearing on foreign complications as viewed from external standpoints. § 74. Same distinctions exist as to all federated powers. — We shall see in the succeeding chapter on the treat3''-raaking power as exercised by the central governments of other con- federations, that this distinction always exists as to the in- ternal and external relations of federated governments, although the extent of the power lodged in the central gov- ernments, or reserved in the constituent states, may be a matter requiring judicial determination as to internal affairs.^ The general rule is that when a confederation deals with foreign powers it necessarily does so as a single national unit. This rule is practicaUy universal, as in almost all federations the central government has absorbed all treaty -making power ; §74. 1 See §§ 111 et seq., chapter IV., post. 138 CH. III.] SOVEREIGNTY OF U. S. AND OTHER POWERS. 76 in fact all the functions of sovereignty, so far as they affect the relations of the confederation or the constituent states with foreign powers, must be exercised by the central gov- ernment, in order to avoid the complications which would result from their exercise by the individual states, each necessarily estabhshing different and therefore conflicting relations.^ § 75. Receut Insular cases decisions only involve these questions from internal standi)oints. — As has been already stated, the recent decisions of tlie Supreme Court^ involve all the internal shades of difference between the States of this union, organized territories, such as Arizona and New Mex- ico, unorganized territories such as Alaska was until recently, and those territories which have been recently acquired, as well as that of the Island of Cuba which, while it has not been acquired by the United States is now occupied by its military forces, and is therefore under its jurisdiction.^ While the Supreme Court has to some extent avoided decid- ing all the points which were raised on the arguments, the various degrees of sovereignty possessed by the Central Government, and exercised over the different territories above enumerated, have been discussed as well as the differ- ence in the status of the various territories composing the United States and which are under its jurisdiction. Those decisions, however, do not affect the external relations of the United States with foreign powers, because as to them there is practically very little, if any, difference as to any territory which comes under the jurisdiction of the United States.^ § 76. Rule from external standpoints, based on inter- national law. — This condition necessarily results from the - TIi;it this position has been taken by the United States as other confedcratioDS is demonstrated by the claim in the Montijn caxsg. See references at length to tlie proceed- ings in §§ 90-100 of this cliapter and footnotes thereto. §75. ' See the cases collated under §61, ante, and references to pend- ing cases. See also § 101, post. 2 See reference to Neely case in- volving the status of Cuba and statutes affecting Cuba in §§ 106- 107, post, and notes thereunder. •^ See extract cited in § 78, note 1 pofit, Fon.f/ Yue Ting vs. United Slates, U. S, Sup. Ct. 1803, 149 U. S. G98, Gray, J. 139 § 78 TREATY-I\LVKING POWER OF THE TJ. S. [oH. III. admitted rule of international law that all the known terri- tory on the face of the earth must be under the jurisdiction of some government, which not only acknowledges that it has jurisdiction thereover, but which is also recognized by the other powers as having, and exercising, such jurisdic- tion ; this rule extends not only to the main territory", but to all territory which is in any way directly or remotely under the jurisdiction of any recognized sovereignty. § 77. Undivided sovereignty of governments exercising jurisdiction recognized by other powers. — It is a well set- tled principle of international law that where jurisdiction is exercised de jure or de facto by any sovereign power, the right of such power to negotiate, and enforce, treaties affect- ing such territory is recognized by, and binding upon, all other powers treating with it, or having any relations with such territory. The Supreme Court has decided that wherever the politi- cal side of the United States Government recognizes the existence of a government and negotiates with it, the courts must uphold and enforce the treaty so made, whether it be with a foreign power or an Indian tribe; and that it is not within the province of the court to go behind the execution of the treaty and to determine whether it is or is not made by the proper authorities.^ § 78. Central government of federations tlie only one recognized by foreign powers This recognition of the United States as a national unit by all other powers is further strengthened by the fact that the States themselves are prohibited by the Constitution from exercising any treaty- § 77. ^ " An objection was taken, on the argument, to the validity of the treaty, on the ground that the Tonawanda band of tlie Seneca In- dians were not represented by the chiefs and head men of the band in the negotiations and execution of it. But the answer to this is, that the treaty, after being executed and ratified by the proper author- ities of the Government, becomes the supreme law of the land, and I 140 the courts can no more go behind it for the purpose of annulling its effect and operation, than they can behind an act of Congress. (1 Cranch, 103; 6 Pet. 735; 10 How. 442; 2 Pet. 307, 309, 314; 3 Story Const. Law, p. 695. )" Fellows vs. Blacksmith, U. S. Sup. Ct. 1856, 19 Howard, 366, p. 372, Nelson, J. See also Jones vs. United States, U. S. Sup. Ct. 1890, 137 U. S. 202, Gray, J. CH. III.] SOVEREIGNTY OF U. S. AND OTHER POWERS. § 80 making power, or from entering into any negotiations or contracts of any kind witli any other power, either State or foreign, as every element of negotiation, as well as of treaty- making, is absolutely confined to the General Government.^ § 79. Rssponsibiiities as well as benefits result from this rule. —The proposition above stated carries with it re- sponsibilities as well as benefits. The author does not in- tend in this volume to go into a lengthy discussion as to the responsibility of the United States government for acts com- mitted in violation of treaty stipukitions by States, or by any force which could, or should, be controlled by State au- thorities. The subject is not only intricate and complicated, but is also exceedingly delicate, and far-reaching in its ap- plication; furthermore as the Supreme Court has never au- thoritatively passed upon the question and definitely deter- mined either the extent of the responsibility of the Central Government for acts of the constituent governments, or the power of the Federal Government to enforce compliance with such stipulations, it would be an academic, rather than a practical discussion, at the present time. § 80. Author's views briefly expressed. — To the author, however, it seems as though the question of responsibility on the part of the Federal Government for violations of treaties by the action or neglect of the States, is not only a very se- rious one, but one which sooner or later will give rise to con- troversies between this government and foreign powers wliich will eventually be the subject of international arbitration. So long as the States are prohibited from negotiating with foreign powers, those powers will naturally insist that the United States shall itself assume all obligations whicii may arise from treaty violations, as it is the only power that can deal directly or indirectly with the foreign powers whose in- terests are affected ; while, however, it is a matter of complete indifference to any foreign power having a grievance against the United States, whether the National Government has or § 78. 1 " The only Government of this country, which otlicr nations recog- nize or treat witli, is tlie Govern- ment of the Union; and the only American flacj known throughout the world is the flag of the United States." Forifi Yue Tinfi vs. United States, U. S. Sup. Ct. 1893, 149 U. S. 698, p. 711, Gray, J. 141 § 82 TREATY-MAKING POWER OF THE U. S. [CH. III. has not the internal power of enforcing compliance with the treaty stipulation by the separate States, or of compelling those States to reimburse it for loss resulting from such vio- lation, it is a matter of great importance to the United States, individually and collectively, that our foreign relations and the settlement of all disputes arising under treaties, no mat- ter what may be the occasion thereof, should be entirely controlled by the National Government, in order that no single State may involve the entire countr\^ in international complications. § 81. Instances in which question has arisen. — The ques- tion of federal responsibility for State violations of treaties has arisen on several occasions. A definite determination of the point, however, has generally been avoided by diplo- matic settlements. The following occurrences, therefore, are to be considered more as historical episodes, than as legal precedents. Four instances will be referred to : The McLeod case in New York in 1811, the Spanish riots of 1851 in New Orleans, the Mafia riots in Louisiana in 1893, the claim of the United States against the Republic of Colombia in the Monti jo case in 1871. § 82. The case of tlie "Caroline" ; Great Britain's po- sition. — In 1837 the steamboat Caroline owned by an Amer- ican citizen was said to be engaged in tr-ansporting recruits and supplies to a rendezvous in Naval Island in Niagara River for cooperation with some Canadian insurgents. It was presumed by Canadian authorities that the boat would be the means of transferring an expedition to the Canadian shore; accordingly a force was dispatched which followed the boat to the moorings on the American shore, and there attacked the crew, killing some of them and letting the boat drift into the river, the current of which carried it over Niagara Fa,lls resulting in its complete destruction. This attack was made the subject of diplomatic corre- spondence, the United States claiming that its territory had been violated, and the Government of Great Britain main- taining that it was justified on the ground of necessity and self-preservation. Later, in 1812, an explanation being made by the British 142 CH. in.] SOVEEEIGNTY OF U. S. AND OTHER POWERS. § 83 government, the United States accepted it as satisfactory and allowed the matter to drop.^ §83. McLeod's connection with the "Caroline"; his arrest by New York State. — Some time after the destruction of the Caroline, Alexander McLeod, a subject of Great Britain, was arrested by the State of New York on the charge that he had been engaged in the Caroline transaction and had committed murder within the jurisdiction of the State of New York. He was indicted, tried and ultimately acquitted. Pending his trial, a writ of habeas corpus was api)lied for on the ground that he was engaged in a governmental act and was not therefore amenable to the local jurisdiction of the State Courts of New Y^ork or even those of the Uni- ted States, as the matter was in course of adjustment by diplomatic departments of the two governments. The State court dismissed the writ and remanded McLeod for trial. Judge Cowen rendered an opinion, in which he asserted that the State of New Y^ork had jurisdiction, notwithstand- ing the matter was the subject of diplomatic discussion be- tween the two countries. In that respect he said : ^ "But it is said of the case at bar, here is more than a mere approval b}' the adverse government, that an explanation has been demanded by the secretary of state ; and the Brit- ish ambassador has insisted on McLeod's release, and counsel claim for the joint diplomacy of the United States and Eng- §82. ^The most complete account of the Caroline and McLeod affairs will be found in Wharton's Inter- national Digest, § 21, vol. I., and § 350, vol. III. Citations were there given of all public documents, cor- respondence and decisions. §83. 1 Judge Cowen's decision includ- ing the extract here quoted from his oijinion has been sevex'ely criti- cised. Wharton's Digest in sec- tion 350 says: "As to McLeod^s case, Mr. Webster, in his speech in the Senate on the treaty of Wash- ington (April 6, 1846) said: 'Mc- Leod's case went on in the court of New York, and I was utterly sur- prised at the decision of that Court on the habeas corpus. On the peril and risk of my professional repu- tation, I now say that the opinion of the court of New York in that case Is not a respectable opinion, either on account of the result at which it arrives, or the reasoning on which it iH'Oceeds.' In a note it is added that the opinion had been reviewed by Judge Tallmadge, of New York City, and that of this review Chief Justice Spencer said that ' it refutes and overthrows the opinion most amply,' and that Chancellor Kent said, ' It is con- clusive at every point. "' 143 § 83 TREATY-MAKING POWER OF THE U. S. [CH. Ul. land some such effect upon the power of this court as a cer- tioi-ari from us would have upon a county court of general sessions. It was spoken of as incompatible with a judicial proceeding against McLeod in this state; as a suit actually pending between two nations, wherein the action of the gen- eral government comes in collision with, and supersedes our own. " To such an objection the answer is quite obvious. Di- plomacy is not a judicial, but executive function; and the objection would come with the same force whether it were urged against proceeding in a court of this state, or the United States. AVhether an actual exertion of the treaty- making power, b}' the President and Senate, or any power delegated to congress by the federal constitution, could work the consequences contended for, we are not called u])on to inquire : whether the executive of the nation, (supposing the case to belong to the national court,) or the executive of this state might not pardon the prisoner, or direct a nolle prosequi to be entered, are considerations with which we have nothing to do. "The executive power is a constitutional department in this, as in every well organized government, entirely distinct from the judicial. And that would be so, were the national government blotted out, and the state of New York left to take its place as an independent nation, "Not only are our constitutions entirely explicit in leaving the trial of crimes exclusively in the hands of the judiciary : but neither in the nature of things, nor in sound policy, can it be confided to the executive power. That can never act upon the individual offendei- ; but only by requisition on the foreiirn g-overnment; and in the instance before us, it has no power even to enquire whether it be true that McLeod has personally violated the criminal laws of this state. It has charge of the question in its national aspect onlv. It must rely on accidental information, and may place the whole question on diplomatic considerations. These may be en- tirely wide either of the fact or the law as it stands between this state and the accused. The whole may turn on ques- tions of national honor, national strength, the comparative value of national i-ntercourse, or even a point of etiquette. 144 CH. III.] SOVEREIGNTY OF F. S. AND OTHER POWERS. § 84 " Upon the principle contended for, every accusation which has been drawn in question by the executive power of two nations, can be adjusted by negotiation or war only. The individual accused must go free, no matter to what extent his case may have been misapprehended by either power. No matter how criminal he may have been, if his country, though acting on false representations of the case, may have been led to approve of the transaction and negotiate concern- ing it, the demands of criminal justice are at an end.^" § 8i. Great Britain's position expressed by Mr. Fox. — While the trial of McLeod was pending the British govern- ment made a demand upon the State Department for his release. To this Mr. Forsyth, who was then Secretary of State, replied that the matter was within the jurisdiction of the State of New York, and that the judicial action of that State, under all the circumstances, was proper. Mr. Fox, the then accredited minister of Great Britain to Washington, was not contented with this, and on March 12, 1841, before the trial of McLeod and after Mr. AVebster had become Secretary of State, he delivered a further protest against the continuance of the trial in which he expressed the views of his government in regard to the national re- sponsibility for all acts in violation of treaty or national rights committed by any of the State governments. In the course of his letter he said : " Her Majesty's government cannot believe that the gov- ernment of the United States, can really intend to set an example so fraught with evil to the community of nations, and the direct tendency of which must be to bring back into the practice of modern war, atrocities which civilization and Christianity have long since banished. " Neither can her Majesty's government admit for a mo- ment the validity of the doctrine advanced by Mr. Forsyth, that the federal government of the United States has no power to interfere in the matter in question, and that the decision thereof must rest solely and entirely with the state of New York. " With the particulars of the internal compact, which may ^People vs. McLeod, N. Y. Su- I pp. 598, 599, Cowen, J. preme Ct. 1841, 25 Wendell, 483, I 10 145 § 85 TREATY-MAKING POWER OF THE U. S. [CH. IH. exist betu'een the several states that compose the Union, foreign powers have nothing to do: the relations of foreign powers are with the aggregate union ; that union is to them represented b\^ the federal government ; and of that union the federal government is to them the only organ. Therefore, when a foreign power has redress to demand for a wrong done to it by any state of the union, it is to the federal gov- ernment, and not to the separate state, that such power must look for redress for that wrong. And such foreign power cannot admit the plea that the separate state is an independ- ent body, over which the federal government has no control. It is obvious that such a doctrine, if admitted, would at once go to a dissolution of the union, as far as its relations with for- eign powers are concerned ; and that foreign powers in such case, instead of accrediting diplomatic agents to the federal government, w^ould send such agents not to that government, but to the government of each separate state ; and would make their relations of peace and war with each state, depend upon the result of their separate intercourse with each state, without reference to the relations they might have with the rest. " Her Majestj^'s government apprehend, that the above is not the conclusion at which the government of the United States intend to arrive ; yet such is the conclusion to which the arguments that have been advanced by Mr, Forsyth necessarily lead. " But, be that as it may, her Majesty's government formally demand, upon the grounds already' stated, the immediate release of Mr. McLeod ; and her Majesty's government entreat the President of the United States, to take into his most delib- erate consideration the serious nature of the consequences w^hich must ensue from a rejection of this demand."^ § 85. Mr. Webster's Reply. — Mr. Webster's reply rather evades the subject of federal i-esponsibility for acts of states ; in the course of it, however, he says : " Soon after the date of Mr. Fox's note, an instruction was §84. 1 Wharton's Digest, § 21, for cita- tions. See also 25 Wendell, 491, 146 p. 508, where correspondence in full is printed as a note. CH. in.] SOVEREIGNTY OF U. S. AND OTHER POWERS. § 85 given to the attorney general of the United States, from this department, by direction of the President, which fully sets forth the opinions of this government on the subject of Mc- Leod's imprisonment, a copy of which instruction the under- sio:ned has the honor herewith to enclose. ^ " The indictment against McLeod is pending in a state court; but his rights, whatever they may be, are no less safe, it is to be presumed, than if he were holden to answer in one of the courts of this government. " He demands immunity from personal responsibility by virtue of the law of nations, and that law in civilized states is to be respected in all courts. None is either so high or so low as to escape from its authority, in cases to which its rules and principles apply. " This department has been regularly informed by his excellency the Governor of the state of New York, that the chief justice of that state was assigned to preside at the hearing and trial of McLeod's case, but that, owing to some error or mistake in the process of summoning the jury, the hearing was necessarily deferred. The President regrets this occurrence, as he has a desire for a speedy disposition of the subject. The counsel for McLeod have requested au- thentic evidence of the avowal by the British government, of the attack on and destruction of the ' Caroline,' as acts done under its authority, and such evidence will be fur- nished to them by this department. " It is understood that the indictment has been removed into the supreme court of the state, by the proper proceed- ings for that purpose, and that it is now competent for Mc- Leod, by the ordinary process of habeas corpus, to bring his case for hearing before that tribunal. " The undersigned hardly needs to assure Mr. Fox, that a tribunal so eminently distinguished for ability and learn- ing as the supreme court of the state of New York, may be safely relied upon for the just and impartial administration of the law in this as well as in other cases; and the under- signed repeats the expression of the desire of this govern- ment that no delay may be suffered to take place in these proceedings which can be avoided. Of this desire, Mr. 147 §87 TREATY-MAKING POWER OF THE U. S. [CH. IH. Fox will see evidence in the instructions above referred to." 1 § 86. Final disposition of the case ; McLeod's acquittal. — After McLeod hud been remanded the trial proceeded and resulted in a verdict of acquittal, after which he was released. While this prevented all further complications, it left unde- cided the important questions as to whether or not the Fed- eral Government could have interfered and taken McLeod from the jurisdiction of the State courts, and either tried him under some federal statute, or released him in accordance with diplomatic arrangements made between the two coun- tries, § 87. Federal statutes passed to meet similar cases. — At that time there were no federal statutes under which the United States could prevent the trial, in State courts, of McLeod or other persons similarly indicted ; in order that the recurrence of such controversies might be prevented there- after, and that the action of a single State might not jeop- ardize the foreign relations of the entire countr}^ the act of August 29, 1842,^ was passed by Congress under which fed- §85. 1 1 Wharton's Digest, § 21, for ci- tation. See also, 25 Wendell, 491, 512, 513, where correspondence is printed in full as a note. §87. i"Sec. 752. The several justices and judges of the said [Federal] Courts, within their respective ju- risdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. " Sec. 75.3. The writ of habeas corpus shall in no case extend to a prisoner in jail, unless when he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursu- ance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is 148 in custody in violation of the Con- stitution or of a law or treaty of the United States; or, being a sub- ject or citizen of a foreign state, and domiciled therein, is in custody for an act done Of omitted under any alleged right, title, authority, privilege, protection, or exemp- tion claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations; or unless it is necessary to bring the prisoner into court to testify. " Sec. 754. Application for writ of habeas corpus shall be made to the court, or justice, or judge au- thorized to issue the same, by com- plaint in writing, signed by the person for whose relief it is in- tended, setting forth the facts con- cerning the detention of the party restrained, in whose custody he is CH. in.] SOVEREIGNTY OF tJ. S. AND OTHER POWERS. § 88 eral courts have jurisdiction of such matters. That statute has since been incorporated in sections 752-4 of the Kevised Statutes of the United States. The United States courts are thus enabled to investigate the cause of detention of any per- son held under a State indictment for otfences similar to those with which McLeod was charged, and which are really not so much violations of the sovereignty of any particular State as they are of the sovereignty of the United States, The right of the United States to intervene in such cases is apparent when it is considered that if any international complications had arisen owing to the McLeod incident, they would have affected not only the State of New York, but the entire country. Plad Great Britain seen fit to resort to arms to redress the injuries which she claimed her citizen has sus- tained, she would not necessarily have limited her attacks to the northern frontier of New York State, but could have commenced hostilities wherever she saw fit, at any point on land or sea ; nor would the State of New York have been able, nor would she have been permitted, to meet these attacks solely with her own State militia. The entire naval and mili- tary forces of the United States, as a nation, would neces- sarily have been called into action in order to repel the in- vasion by, or the hostile attacks of, a foreign State, on any part of the domain of the United States, State or national. § 88. Anti-Spanish Riots in New Orleans of 1851 In August, 1851, a mob in New Orleans demolished the build- ing in which the office of the Spanish consul was located. At the same time attacks were made upon cotfee houses and cigar shops kept by Spanish subjects. American citizens were involved in the loss which, in the aggregate, was large. The supposed cause of the mob was the intelligence of the execution of 50 young Americans in Havana and the banish- ment to Spanish mines of nearly 200 citizens of the United States. The victims were all members of the abortive Lopez expedition against Cuba. In consequence of these depre- detained, and by virtue of wliat claim or authority, if knowu. The facts set forth in the complaint shall be verified by the oath of the person making the application." 5 U. S. Stat, at Large, p. 539; 29 Aug. 1842, c. 257, s. 1; see also Wharton's Int. Law Dig. vol. 1, section 21. 149 TREATY-MAKESTG POWER OF THE U. S. [CH. ni. dations of the mob upon the property of the Spanish consul, as well as against Spanish subjects, the Minister of Spain demanded indeinnitication for all the losses, both official and personal. Mr. Webster admitted that the Spanish consul was entitled to indemnity, and made a proposition as to how the indignity offered to the representative of the Spanish government should be accorded ; but when pressed by the Spanish Minister to afford an indemnity to Spanish subjects who were injured by the mob, in common with American citizens, Mr. Webster declined to accede to the demand, and gave as his reasons that as many American citizens had suf- fered equal loss, the private individuals, Spanish subjects, coming voluntarily to reside in the United States had no cause of complaint, for they were protected by the same laws and the same administration of law as native born citizens of this country.^ §88. ' The history of the anti-Spanish riots in New Orleans will be found in the Foreign Kelations Reports for 1851-2, and rehearsed in the Eeports for 1891, during the Mafia Riot cori'espondence. The follow- ing is an extract from a note sent by Daniel Webster, Secretary of State, to Mr. Calderon, the Spanish Minister, November 13, 1851: "The assembling of mobs hap- pens in all countries ; popular vio- lences occasionally break out every- where, setting law at defiance, trampling on the rights of citizens and private men; and sometimes on those of public officers, and the agents of foreign governments, especially entitled to protection. In these cases the public faith and national honor require, not only that such outrages should be dis- avowed, but also that the perpetra- tors of them should be punished, whenever it is possible to bring them to justice; and further, that full satisfaction should be made in cases in which a duty to that effect 150 rests with the government, accord- ing to the general principles of law, public faith, and the obligation of treaties. " Mr. Calderon thinks that the enormity of this act of popular violence is heightened by its insult to the flag of Spain. The Govern- ment of the United States would earnestly deprecate any indignity offered in this country, in time of peace, to the flag of a nation so an- cient, so i-espectable, so renowned as Spain. No wonder that Mr. Calderon should be proud, and that all patriotic Spaniards of this gen- eration should be proud of the Castilian ensign which in times past has been reared so high and waved so often over fields of ac- knowledged and distinguished valor; and which has floated, also, without stain, on all seas, and espe- cially, in early days, on those seas which washed the shores of all the Indies. "Mr. Calderon may be assured that the government of the United States does not and cannot desire OH. III.] SOVEREIGNTY OF U. S. AND OTHER POWERS. 89 § 89. Mr. Webster's position. — The above section is quoted almost verbatim from a resume of the occurrences of 1851, to witness the desecration or deg- redation of the national banner of his country. It appears, liowever, tliat in point of fact no flag was actually flying or publicly exhib- ited when the outrage took place; but this can make no difference in regard to the real nature of the offence or its enormity. The per- sons composing the mob knew that they were offering insult and injury to an officer of Her Catholic Majesty, residing in the United States under the sanction of laws and treaties; and, therefore, their conduct ad- mits of no justification. Neverthe- less, Mr. Calderon and his gov- ernment are awai'e that recent intelligence had been received from Havana, not a little calculated to excite popular feeling in a great city, and to lead to popular ex- cesses. If this be no justification, as it certainly is none, it may still be taken into view, and regarded as showing that the outrage, how- ever flagrant, was committed in the heat of blood, and not in pursuance of any predetermined plan or pur- pose of injury or insult. " The people of the United States are accustomed, in all cases of al- leged crime, to slow and cautious investigation and deliberate trial before sentence of condemnation is passed, however apparent or how- ever enormous the imputed offence may be. No wonder, therefore, that the information of the execu- tion, so soon after their arrest, of the persons above referred to — most of whom were known in New Orleans, and who were taken not in Cuba, but at sea, endeavoring to escape from the island— should have produced a belief, however erroneous, that they had been exe- cuted without any trial whatever, caused an excitement in the city, the outbreak of which the public authorities were unable for the moment to prevent or control. "Mr. Calderon expresses the opinion that not only ought indem- nification to be made to Mr. La- borde, her Catholic Majesty's con- sul, for injury and loss of property, but that reparation is due also from the government of the United States to those Spaniards residing in New Orleans whose property was injured or destroyed by the mob; and in- timates that such reparation had been verbally promised to him. The undersigned sincerely regrets that any misapprehension should have grown up out of any conversa- tion between Mr. Calderon and offi- cers of this government on this unfortunate and unpleasant affair; but while this government has man- ifested a willingness and determin- ation to perform every duty which one friendly nation has a right to expect from another, in cases of this kind, it supposes that the rights of the Spanish consul, a pub- lic officer residing here under the protection of the United States Government, are quite different from those of the Spanish subjects wlu) have come into the country to mingle with our own citizens, and here to pursue their private busi- ness and objects. The former mny claim special indemnity; the latter are entitled to such protecticm as is afforded to our own citizens. "While, therefore, the losses of individuals, private Spanish sub- jects, are greatly tt) be regretted, yet it is understood that many 151 § 89 TKEATY-MAKING POWER OF THE U. S. [CH. III. contained in a note written in 1S91 by Mr. Blaine to the ]\Iarquis Imperiali, in regard to the Matia riots, wliich will be referred to at a subsequent point in tliis chapter.^ Mr. Webster in 1851 took the position that the widows and children of the United States citizens who had lost their lives by niob violence could sue the leaders and members of the mob only in the courts of the State of Louisiana, v/hile the widows and children of Spanish subjects had the right to sue each member of the mob, not only in the State courts, but also before the federal tribunals for the District of Louis- iana ; there was an attempt made to disclaim all responsibility American citizens suffered equal losses from the same cause. And these private individuals, subjects of her Catholic Majesty, coming voluntarily to reside in the United States, have certainly no cause of complaint, if they are protected by the same law and the same admin- istration of law as native-born citi- zens of this country. They have, in fact, some advantages over citi- zens of the State in which they happen to be, inasmuch as they are enabled, until they become cit- izens themselves, to prosecute for any injuries done to their persons or property in the courts of the United States, or the State courts, at their election. The President is of opinion, as already stated, that for obvious reasons the case of the consul is different, and that the government of the United States should provide for Mr. Laborde a just indemnity; and a recommen- dation to that effect will be laid be- fore Congress at an early period of its approaching session. This is all which it is in his power to do. The case may be a new one; but the President, being of opinion that Mr. Laborde ought to be in- demnified, has not thought it necessary to search for pi-ecedents. 152 "In conclusion, the undersigned has to say, that if Mr. Laborde shall return to his post, or any other consul for New Orleans shall be appointed by her Catholic Ma- jesty's Government, the officers of this government, resident in that city, will be instructed to receive and treat him with courtesy, and with a national salute to the flag of his ship, if he shall arrive in a Spanish vessel, as a demonstration of respect, such as may signify to him, and to his government, the sense entertained by the govern- ment of the United States of the gross injustice done his predecessor by a lawless mob, as well as the indignity and insult offered by it to a foreign State, witli which the United States are, and wish ever to remain, on terms of the most respectful and pacific intercourse. " The undersigned avails himself of this occasion to offer to Mr. Cal- deron renewed assurances of his most distinguished consideration." (Foreign Relations of the U. S., 1851-52, pp. G3-6.J.) See also 2 Wharton's Digest, § 226. §89. 1 See § 94, i^ost, and extracts from Secretary Blaine's note in the foot- note to that section. CM. Ill,] SOVEREIGNTY OF U. S. AND OTHER POWERS. § 91 on the part of the federal government for the violence done to Spanish citizens.- § 90. Indemnity ultimately paid to sufferers. — Two years later, however, in recognition of the magnanimous conduct of the Queen of Spain in pardoning American citi- zens who had unjustifiably invaded the Island of Cuba, a joint resolution was adopted by Congress and approved by President Fillmore March 3, 1853, indemnifying the Spanish Consul and other Spanish subjects for the losses sustained in the New Orleans mob of 1851. The State department, how- ever, are on record as stating in the letter above referred to that the considerations upon which this resolution was passed were held not to contravene the original position of Mr. Webster, which was shared also by President Fillmore.' § 91. The Mafia Riots in New Orleans of 1891.— On March 14, 1891, a number of Italians then confined in the jail in New Orleans, were forcibly taken from the jail and hanged, by the action of a large number of citizens. The episode has passed into history under the title of the Mafia Riots. Many of the respectable citizens of New Or- leans, however, claim that it was not in the nature of a riotous outbreak, but a mere enforcement of justice in a summary manner after the local courts had failed to admin- ister it in pursuance of law upon criminals who had, under a regular organization, committed many atrocious crimes, and that the method adopted was the only practical way of put- ting a complete stop to the outrages which they claimed had been committed through the " Mafia." The Marquis Rudini immediataly cabled from Rome to Baron Fava, the Italian Minister to the United States, "to denounce immediately to the United States government the atrocious deed of New Orleans, requesting immediate and energetic steps to repress the riot, to protect the Italian col- ony endangered thereby, and also to severely punish the guilty." Baron Fava made a formal demand at once upon Mr. Blaine, Avho was then Secretary of State. A lengthy cor- respondence ensued between Governor Nicholls of Louisiana 2 See § 88 ante. l i U. S. Foreign Relations Reports § 90. 1 1891, p. 684. 153 § 93 TREAT Y-IMAKING POWER OF THE U. S. [CH. Ul. and Mr. Blaine in regard to the occurrences, and between Mr. Blaine and Baron Fava as to the liability of the United States. § 02. Complicatious arising from the Malta Riots. — This correspondence is ver}' lengthy, comprising over fift}^ pages of the Foreign Relations Reports of 1891. On April 2, 1S91, the Italian government repeated its demand for prompt set- tlement of its claims, and demanded indemnity for the fami- lies of the men who had been killed. The correspondence shows that, at times, the situation became quite acute and various questions other than the lia- bility of the Federal Government were involved, such as the conduct of the Italians, and whether or not they had retained their citizenship of Italy and were entitled to the protection of the Italian government. So strained did the relations be- tv/een the Governments of the United States and Italy be- come that the Italian Minister withdrew from Washington and diplomatic relations were for a time practically sus- pended. We are, however, interested onlv in the single point as to the position taken in the correspondence by the tv/o govern- ments as to the liability of the Government of the United States, for the failure of the State government of Louisiana, to afford to Italian citizens the protection to life and prop- erty which is reciprocally assured to the citizens of the two countries under the then existing treaty stipulations. § 93. Action of the State courts of Louisiana. — A grand jury, consisting of many prominent citizens uf Xew Orleans, found that the acquittals of the Italians by trial juries were improper, and that the uprising of citizens and the resulting summary executions, or lynchings, were the result of the dan- gerous form which the " Mafia " had assumed ; and that the respectable element of New Orleans feared that unless some such prompt and energetic action was taken it would be im- possible to suppress the Italian secret societies and prevent the recurrence of similar atrocities, which had increased to a tremendous extent owing to the practical immunity afforded by the constant acquittal of persons brought to trial.* §93. iThe report of the Grand Jury appears at length at page 714 et seq. 154 of the Foreign Relations Reports for 1891. CH. in.] SOVEREIGNTY OF IT. S. AND OTHER POWERS. § 93 None of the participants in the "• summary execution " of the Italians were indicted or tried. The Italian govern- ment protested against the non-punishment of the parties whom it claimed had participated in the killing of Italian citizens and the gross violations of treaty stipulations. In the Circuit Court of the United States it was held that the heirs of the Italians who had been killed could not recover.^ - This was an action aiisinnc out of wLat are known as the Matia Riots in New Oileaas in 1891. The plain- tiff recovered a judgment for five thousand dollars for the death of her son, who was killed during the course of the riots. He was an Italian citizen. The liability of the municipal governments arising out of the treaty relations of the treaty with Italy of 1871, involved this case. The Circuit Court of Appeals reversed the decision with instructions to maintain the excep- tion of non-liability of the city and to dismiss the plaintiff's petition as stated in the opinion ( pp. 541-42 ) : "The City of New Orleans by her pleadings admits the gross neg- ligence charged in the petition in the performance of the duties de- volving upon the municipality un- der the constitution and laws of the state above referred to, where- by Abbagnato lost his life at the hands of a mob while in the cus- tody of the law; and the question presented in this case is whether on such admission of facts the city can be held liable in damages. " It is well settled that at com- mon law no civil action lies for an injury to a person which results in his death. Insurance Company vs. Brume, 95 U. S. 754, 75(5; Dennick vs. Railroad Company, 103 U. S. 11, 21; The Harrisburg, 119 U. S. 199, 214. The rule is the same under the civil law, according to the deci- sions of the Louisiana Supreme Court. Hubgh vs. The New Orleans and Carrollton Railroad Company, 6 La. Ann. 495; Hermann vs. The New Orleans and Carollton Railroad Company, 11 La. Ann. 5. In the absence of a statute giving a rem- edy, public or municipal corpora- tions are under no liability to pay for the property of individuals de- stroyed by mobs or riotous assem- blages. Addison on Torts ( notes by Dudley & Uaylies, 1880), sec. 1530; 2 Dillon's Municipal, Corporations, sec. 959." The effect of a treaty upon the question involved was discussed and disposed of at the oi^eniug of the opinion as follows: " The treaty between the King- dom of Italy and tlie United States, proclaimed on November 23, 1871, guarantees to the citizens of either nation in the territory of the other ' the most constant protection and security for their persons and prop- erty,' and further provides that they shall enjoy in this respect the same rights and privileges as are or shall be granted to the na- tives, on their submitting them- selves to the conditions imposed upon the natives.' Treaty of No- vember 23, 1871, 17 Stat. (Treaties) 49, .50, art. 3. This treaty applies to this case only so far as to require that the rights of the plaintiff shall be adjudicated and determined ex- actly the same as if she were, and her deceased son had been, a na- tive citizen of the United States." 155 § 94 TREATY-MAKING POWER OF THE U. S. [CH. III. §94. Mr. Blame's position On April 14, 1891, Secre- tary Blaiiio sent a lengthy n(^te to the Marquis Im])eriali containing a resume of the i)ositions taken by the United States on such subjects, and in which he recited the incident of the Spanish Mob of 1S51, already referred to in this chap- ter,^ and also declared, that ''if it shall be found, as seems probable, that criminal proceedings can only betaken in the courts of Louisiana the President can, in this direction, do no more than to urge upon the State officers the duty of promptly bringing the offenders to trial." A statement at the end of his letter, however, contained a qualified admission as to the liability of the United States, if the facts were as claimed by the Italian government. Mr. Blaine's letter is exceedingly guarded as to all possi- ble liabilit}" of the United States and the extract in the notes appended to this section shows that he took the position that the citizens of foreio-n countries residincr in our States must seek their redress from the courts of those States, and that the United States government does not become the insurer of lives of the citizens of foreign countries, even though it may enter into treaty stipulations with them, but that all it can do or is called upon to do is to afford to citizens of those countries the same rig-hts which citizens of the United States are accorded under similar circumstances.^ New Orleans vs. Abbagnato, U. S. § 94. Cir. Ct. App., .5 Cir., 23 U. S. App. i See § 88 ante. 533, Pardee, J. -The correspondence between this country and Italy in regard to the Mafia Riots appears in the Foreign Relations Reports for 1891. The fol- lowing is an extract from a note sent on April 14, 1891, by James G. Blaine, then Secretary of State, to the Marquis Imperiali, the Italian minister to the United States: "If it shall result that the case can be prosecuted only in the State courts of Louisiana, and the usual judicial investigation and jjrocedure under the criminal law is not resorted to, it will then be the duty of the United States to consider whether some other form of redress may be asked. It is understood that the State grand jury is now investigating the affair, and, while it is possible that the jury maj- fail to present the indictments, the United States cannot assume that such will be the case. "The United States did not by the treaty with Italy become the in- surer of the lives or property of Italian subjects resident within our territory. No Government is able, however high its civilization, how-» ever vigilant its police supervision, however severe its criminal code, 156 CH. III.] SOVEREIGNTY OF U. S. AND OTHER POWERS. § 95 § 95. Final result of the Mafia cases. — A year after the Mafia Riots, Secretary Blaine tendered to the Italian gov- ernment 125,000 francs to be distributed by that government and however prompt aad iuflexible its criminal administration, to secure its own citizens against violence promoted by individual malice or by sudden popular tumult. The foreign resident must be content in such cases to share the same redress that is offered by the law to the citizen, and lias no just cause of complaint or right to ask the interposition of his country if the courts are equally open to him for the redress of his injuries. The treaty, in the first, second, third, and, notably, in the twenty-third articles, clearly limits the rights guaranteed to the citizens of the contracting powers in tlie territory of each to equal treatment and to free access to the courts of justice. Foreign residents are not made a favored class. It is not believed that Italy would desire a more strin- gent construction of her duty under the treaty. Where the injury in- flicted upon a foreign resident is not the act of the Government or of its officers, but of an individual or of a mob, it is believed that no claim for indemnity can justly be made, unless it shall be made to appear that the public authorities charged with the peace of the community have con- nived at the unlawful act, or, having timely notice of the threatened danger, have been guilty of such gross negligence in taking the neces- sary precautions as to amount to connivance. " If, therefore, it should appear that among those killed by the mob at New Orleans there were some Italian subjects who were resident or domiciled in that city, agreeably to our treaty with Italy, and not in violation of our immigration laws, and who were abiding in the peace of the United States and obeying the laws thereof and of the State of Louisiana, and that the public officers charged with the duty of protect- ing life and property in that city connived at the work of the mob, or, upon proper notice or information of the threatened danger, failed to take any steps for the perservation of the public peace and afterwards to bring the guilty to trial, the President would, under such circum- stances, feel that a case was established that should be submitted to the consideration of Congress with a view to the relief of the families of the Italian subjects who had lost their lives by lawless violence." (Foreign Relations of the United States, 1891, p. 685.) Mr. Blaine's note being transmitted to his government called forth the following cable reply from the Marquis Rudini to the Marquis Im- periali which was received at the State Department May 4, 1891: "I have now before me a note addressed to you by Secretary Blaine, April 14. Its perusal produces a most painful impression upon me. I will not stop to lay stress upon the lack of conformity with diplomatic usages displayed in making use, as Mr.- Blaine did not hesitate to do, of a portion of a telegram of mine communicated to him in strict confi- dence, in order to get rid of a questionsio^ like that of the consul Postumius at the Caudine Forks, does not bind the sovereign, — it is held, — for the engager had no power to convey rights belonging to another. And yet it may be morally wrong in a high degree for the sovereign to violate such an engagement of a subordinate; for it might be an act of extreme necessity, to which the usual forms of governmental proceedings would not apply. Moreover the actions of military or naval commanders must be to a certain extent left without positive restrictions, and usage might be pleaded for many transactions of this nature. Again, from the nature of the case a faction, a province, or an integral part of a close confeder- ation has no treaty- making power; although a loose confederation, like the Germanic, might exist, while conceding such a prerogative to its members. Individuals, or other dependent bodies, can make commer- cial arrangements with a foreign power, unless their laws forbid; but the arrangements apply to a particular case, and obligate none else; they are like any other private contracts; nor has a government over such a contracting party anything to do in the premises, save to protect and, if expedient, to afford its redress against injustice. Political en- gagements, or such as affect a body politic, can be made only by politi- cal powers. And the actual sovereign alone, or a power possessing the attributes of sovereignty at the time, can bind a nation by its engage- ments." Woolsey's Introduction to the study of International Law, § 101 -102, pp. 158-159, 6th ed. New York, 1891 194 CH. IV.] TREATY-MAKING POWER OF FEDERATIONS. § 113 of its members, it is a state provided that the obedience of the bulk of the people is rendered to the authorities. If there is no such obedience, there is anarchy ; and in propor- tion as obedience is lacking the community runs the risk of losing its statehood. A mere administrative division of a greater whole, such as a French Department or an English County, vv^ould not be called a state ; but we should not refuse the title to a community like Canada which is not entirely free from political subjection, though we should probably indicate the absence of complete self-government by speaking of it as a Dependent State. " We have seen what is meant by a state. If we add to the marks already given in our definition of it, the further mark that the body or individual who receives the habitual obedience of the community does not render the like obedi- ence to any earthly superior, we arrive at the conception of a Sovereign or Independent State, which possesses not only internal sovereignty, or the power of dealing with domes- tic affairs, but external sovereignty also, or the power of dealing with foreign affairs. The commonwealths which compose the American Union possess all the features we have enumerated as the distinguishing marks of states. They are, therefore, rightly so called ; but historical and political reasons have sometimes caused them to be alluded to as Sovereign States. Strictly speaking, this is a mistake. By the Constitution of the United States all dealings Avith for- eign powers are left to the central government. The Exe- cutive and Legislature of any and every state in the Union are devoid of the slightest power to act in these matters, and have to submit to what is done by the authorities at Washington. They have none of the attributes of external sovereignty. They cannot make war or peace, nor can they send agents to foreign powers or receive agents from them. In other words, they are states, but they are not Sovereign States." 1 § 113. Views of Henry WLeaton.— " The power of nego- §112. 1 Lawrence's Principles of Inter- national Law, § 43, pp. 5G-57, Bos- ton, 1895. See also same volume, § 144, pp. 263-264, for Professor Lawrence's views as to treaty-mak- ing power of confederations. See also note to § 114, post. 195 § 114 TREATY-MAKING POWER OF THE U. S. [CH. IV. tiating and contracting public treaties between nation and natioQ exists in full vigor in every sovereign state which has not parted with this portion of its sovereignty, or agreed to modif}'' its exercise by compact with other states. . . . Thus the several States of the North American Union are expi-esslv prohibited from entering into any treaty with for- eign powers; . . . whilst the sovereign members of the Germanic Confederation retain the power of concluding treaties of alliance and commerce, not inconsistent with the fundamental laws of the Confederation. The Constitution, or fundamental law, of every particular State must deter- mine in whom is vested power of negotiating and contract- ing treaties with foreign powers.^ " The power referred to by AVheaton as retained by the constituent sovereignties of the Germanic Confederation to continue to exercise foreign relations proved so embarrassing that when the present German Empire was organized the several States and sovereignties composing it were com- pelled to surrender the treaty-making power absolutely to, and vest it in, the Central Government, by which it is ex- clusively exercised with as far-reaching powers as though the Empire were a single unit.^ § 114. In coufederatious tlie treaty-making power is in the Central Government.— As the treaty-making power is lodtred in the highest governmental authority in each state, it follows that in confederated states the power must be lodged in the central government of the federation, as under no other circumstances could it be properly exercised. The impracticabihty of allowing constituent states to exercise anv treaty-making power was demonstrated in the case of the North German Confederation, and as just stated, that method was abandoned on the formation of the Empire.^ §113. iWheaton's Elements of Inter- national Law, part 3, chap. II, § 1, p. 185, Philadelphia, 1836; part 3, chap. II, § 1, p. 441, of Lawrence's Wheaton, 2d edition, Boston. 1863; chap. II, § 252, p. 356, of Boyd's Third English edition, London, 1889 ; chap. II, § 252, p. 328 of Dana^s 196 Wheaton, Eighth edition, Boston, 18G6. 2 For constitntional provisions as to the exercise of the treaty-mak- ing power in Germany, see §§ 128 and 130 and foot-notes thereunder, post. §114. iSee § 113, ante, and foot-note. CH. IV.] TREATY-MAKING POWEE OP FEDERATIONS. § 114 II may be too broad an assertion to state that the treaty- making- power never exists in constituent States, but as a general principle it may be said that the central government of federations is the only government which other powers will recognize in dealing with an^^ matter affecting the entire federation or any of the constituent states, and that this rule has not only been generally adopted as a principle of inter- national law but also of the constitutional law of nearly all existing confederations.'^ The views of some authorities on international law are collated in the footnote hereto.^ 2 See collation of constitutional [ provisions as to treaty making in 1 note to § 130, post. SpKOFESSOR LAWRENCE'S VIEWS. "The Sovereign States which are Subjects of International Law are regarded as units in their dealings with other states. They are corpo- rate bodies, acting through their governments. Each state is bound by the engagements entered into by its rulers on its behalf, as long as they have beeu made in accordance with its own law and constitution. Other states have no right to dictate what individual or body in a state shall conduct its external affairs. As long as there is such an individ- ual or body of individuals, they must transact their business with him or them. If no such authority exists, they can decline to transact busi- ness at all; and if a state remains for any length of time in such a con- dition of revolution or anarchy that no one has authority to speak on its behalf, it will soon cease to be a Subject of International Law in its existing form, though in all probability its territory and people will enter into new combinations and still retain under changed conditions some place in the ranks of civilized states. The continuity of a state, and consequently its liability to be called upon to fulfill the interna- tional obligations it has contracted, is not affected by change of govern- ment or loss of outlying territory. But if it splits up into several states, or is obliterated altogether like Poland, or enters with others, like each of the American colonies whose independence was recognized by Great Britain in 178.3, into a union for the formation of a new state, it loses its corporate existence as a Subject of International Law. When this happens, the circumstances of each case decide what is to become of the debts and other obligations with wliich the lost state was bur- dened. In some instances they disappear with the body corporate to which they belonged; in others an equitable division of them is made. The law of nations lays down no clear rules with regard to these mat- ters; but it does clearly say that if a state desires to have intercourse with other states, there must be some authority within it capable of pledging it to a given course of conduct. " This is true of Confederations no less than of States which are organic wholes in their internal organizatiun. Confederations are generally 197 § 115 TREATY-MAKING POWER OF THE U. S. [CH. IV. § 115. Views of Professor Hall — William E. Ilall, whose works to-day rank among the leading English authorities on divided into two kinds, for neither of which is there a good term in the English kinguage. The first, culled in German a Bundes.'itaat, com- prises those unions in which the central authority alone can deal with foreign powers and settle external affairs, the various members of the Confederation having control over their internal affairs only. In the second, called a Staatenlmnd, are included all Confederations where the States which have agreed to unite have retained for themselves the power of dealing directly with others in some matters, the remaining external affairs being reserved by the federal bond to the central authority. Unions of the first kind have been called Supreme Federal Governments, unions of the second kind Systems of Confederated States. The best examples of the former now in existence are the United States of America and the Swiss Confederation. No good ex- ample of the latter remains to the present time; but the German Bund from 1815 to 1866 exhibited to the world in full perfection the disad- vantages of this kind of union. From the point of view of International Law, a Bundesstaat does not differ from an ordinary Sovereign State. It forms but one state in relation to foreign powers, though internally it may consist of many states. But as these states have no right of sending and receiving diplomatic missions, or making peace or war, foreign powers have as little to do with them as they have with the administrative divisions of an ordinary state. The case of a Staaten- bund is different. It is a bundle of separate states, each of which re- tains some of the rights of external sovereignty while it is deprived of the remainder. Accordingly the states which compose it must be placed by International Law among those part-sovereign communities which we have to consider as the second class among its subjects. They are something more than administrative divisions of a larger whole. They are something less than Sovereign States. " It is sometimes exceedingly difficult to refer a given Confederation to either of the types depicted above. The Swiss Confederation, for in- stance, was at its inception a union of the looser kind. It is now a Supreme Federal Government, or Bundesstaat. But at certain periods of its history it could hardly have been called one or the other with any regard to accuracy. At the present time the new German Empire, which was constituted in 1871 in consequence of the successful war with France, is in much the same predicament. The central authority makes war and peace, sends and receives ambassadors, and negotiates treaties for political and commercial objects. But the governments of some of the states which form the empire have the right of accrediting diplomatic representatives to foreign powers and receiving representa- tives from them to deal with matters not reserved to the Imperial Gov- ernment. Moreover, Bavaria and Saxony have ministers for foreign affairs. Probably the diplomatists in question are not overwhelmed with work; for it is difficult to discover in tlie Constitution of the Em- pire any matters left for them to deal with. But since a right of sepa- 198 CH. IV.] TREATY-MAKING POWER OF FEDERATIONS. § 115 international law, referred to the treaty-making power in the following words : " It follows from the position of a State rate diplomatic intercourse with foreign powers is vested in the more important of the federated states, we are unable to say that the Con- federation is a true Bundesstaat, however insignificant the deflections from that type may be. At the same time it is equally impossible to call it a Staatenbund, in view of the fact that for all practical purposes the central authority alone transacts the external business of the Union. There can, however, be no doubt that, if the Confederation lasts, the subordinate states will rapidly lose whatever control over their rela- tions with foreign powers they may still possess." Lawrence's Princi- ples of International Law, Boston, 1895, section 45, pp. 60-63. DB. PHILLIMORE'S VIEWS. " C. We now arrive at the second branch of this part of our subject — namely, the consideration of several States under a Federal Union. The examples in modern times of this description of States are the fol- lowing: — " 1. The Germanic Confederation (Der Deutsche Bund) (a), the North German Confederation from 1866 to 1871, the German Empire since 1871. " 2. The Confederated Cantons of Switzerland. "3. The United Republics of North America. "4. The United Republics of Central and South America: — namely, first. The United Provinces of Guatemala, or the Republic of Central America; secondly. The United Provinces of Rio de la Plata, or the Argentine Republic. " CI. States under a Federal Union may be classed under two princi- pal heads: — First. Those which have retained their Independent and Individual Sovereignty, especially as to the adjustment of their external relations with other Nations, and belong to a system of Confederated States only for purposes of domestic and internal policy, and of mutual assistance and defence. (Staatenbund) (b). " But the Laws of this Federal Body have only effect and force in the separate membei's of the system through the agency and application of the particular laws and jurisdiction of each individual Government; therefore, as far as Foreign Power is concerned, these Confederated States must be considered as individually responsible for their conduct, and as separate Independent States. In this class must be ranked the existing Germanic Confederation. "Secondly. The Federal Union may be so adjusted tliat the manage- ment of the external relations of the respective members of the Union be absolutely vested in a Supreme Federal Power." Phillimore's In- ternational Law, 3d edition, London, 1899, vol. 1, pp. 156-157. GARDNER'S INSTITUTES. "Nations, by their fundamental laws, may respectively limit the authority of the treaty-making power; but if there be no limitation, 199 § 116 TREATY-^LVKING POWER OF THE U. S. [CH. IV. as a moral being, at liberty to be guided by its own will, that it has the power of contracting with another State to do any acts which are not forbidden, or to refrain from an}' acts which are not enjoined by the law which governs its inter- national relations, and this power being recognized by inter- national law, contracts made in virtue of it, when duly con- cluded, become legally obligatory, ... " The antecedent conditions of a treaty may be stated as follows : The parties to it must be capable of contracting ; the agents employed must be dul}^ empowered to contract on their behalf ; the parties must be so situated that the consent of both may be regarded as freely given ; and the objects of the agreement must be in conformity with law. " All States which are subject to international law are cap- able of contracting, but they are not all capable of contract- ing for whatever object they may wish. The possession of full independence is accompanied by full contracting power ; but the nature of the bond uniting members of a confedera- tion, or joining protected or subordinate States to a superior, implies either that a part of the power of contract normally belonofinsr to a State has been surrendered, or else that it has never been acquired. All contracts, therefore, are void which are entered into by such States in excess of the powers retained by, or conceded to, them under their existing rela- tions with associated or superior States."^ § 116. Views of Professor Pomeroy. — John JSTorton Pom- eroy, whose opinion upon the general subject is strengthened by the fact that he is one of the leading authorities upon con- treaties of peace as well as otbers, may, by virtue of the nation's right of eminent domain, and of a general treaty-making power, alien any part of the pnV)lic domain or property, and abandon for the public ad- vantage, all private claims and property of the citizens of either con- tracting party upon the other, or its citizens. (Wheat. Int. L. p. 4, c. 4, Sec. 1, 2, 3). "In the United States, if private property and private claims are abandoned by a treaty of peace, as was done by our treaty of peace of 1848 with Mexico, the Constitution requires Congress to pay our citi- zens for the private property so abandoned; and it has been done." Gardner's Institutes of American International Law, New York, 1860, p. 584. § 115. 1 X, §§ 107-108. pp. 3.39-340, 4tb edi- 1 Hall's International Law, chap, [tiou, Oxford and London, 1895. 200 CH. IV.] TREATY-MAKING POWER OF FEDERATIONS. § 117 stitutional law of the United States, says: "The right to enter into treaties at will is certainly one of the most impor- tant that belong to States. As all States are equal, they all have the same capacity to contract with other bodies politic. Deprive a nation of any portion of this capacity, and we would reduce it from its position of equality, and at the same time would restrict its complete independence and sover- eignty. The want of complete power, therefore, to enter into treaties is a sure badge of inferiority and dependence. . . . The very definition indicates that all sovereign inde- pendent States have full capacity to enter into whatever treat- ies they please. The right of negotiating and contracting treaties is one of the rights most essential to sovereignty and equality. A protected State may, if it has retained its sov- ereignty, enter into treaties and alliances, unless the power has been expressly renounced or cannot be exercised consist- ently with the conditions of its protection. But so far as the capacity had been surrendered or restricted, just so far would the State have limited its attributes of sovereignty and equality." ^ § 117. Constitutional limitations on treaty-making. — "While the power to make treaties is vested in the highest power, its exercise may, of course, be subject to certain constitutional limitations. This is the case with the United States, the Constitution of which requires the ratification of treaties made by the Executive by a two-thirds vote of the Senate.^ The element of sovereignty in the Central Govern- ment, and the power of negotiation in the Executive thereof, however, are not affected by such limitations, as they do not detract from the completeness of the power, when it is properly and constitutionally exercised. This point was thor- oughly appreciated as an elementary principle of interna- tional law prior to the adoption of the Constitution and even of the Articles of Confederation. §116. 1 Poineroy's International Law, Woolsey's Edition, chap. IX, §§ 2.j8 -260, pp. 323-.324, Boston and New York, 1886; See also views of Pro- fessor Pomeroy as to extent of treaty-makinji power of the United States, §§ 268-271 of this volume, post. § 117. 1 U. S. Constitution, article II, § 2, clause 2. 201 § 117 TKEATY-M.UvlNG POWER OF THE U. S. [CH. IV. Yattel Avho, at the middle of the eighteenth century was one of the leadhig authorities on international law, says: " Public treaties can only be made by the superior powers, by sovereigns, who contract in the name of the State. . . . The sovereign who possesses the full and absolute authority has, doubtless, a right to treat in the name of the State he represents; and his engagements are binding on the whole nation. JBut all rulers of States have not a power to make public treaties by their own authority alone : some are obliged to take the advice of a senate, or of the representatives of the nation. It is from the fundamental laws of each State that we must learn where resides the authority that is capable of contracting with validity in the name of the State." ^ Ac- cording to Halleck, "the treaty-making power of the State is determined by its own Constitution and fundamental law." ^ The views of Professor Glenn and Professor Lawrence on this point are quoted in the note to this section.* ^Vattel on the Law of Xations, Chitty and Ingi'aham, Philadelphia 1870, p. 192. ^Halleck's International Law, Sir Sherstone Baker's 3d English edition, London, 1893, vol. 1, p. 276. GLENN. *"100. Treaties Defined. Treat- ies are agreements made and en- tered into by one independent state with another, or others, in con- formity to law, by which it places itself under an obligation. The following agreements are not con- sidered treaties: "(a) Agreements entered into by a state with private individuals. "(6) Agreements concluded be- tween a state and the church upon religious or political matters, and especially concordats of different states with the pope. "(c) Agreements concluded by sovereigns or sovereign dynasties, whether among themselves or with 202 foreign states, relative to their personal or dynastic pretensions to the government of a country. " The three classes of agreements mentioned above are all of such a nature as to form no part of pub- lic international law, as they are either made between a state and private individuals or by agents of the state in their individual char- acter. " Essentials of valid Treaty. " 101. The essentials of a valid treaty or contract between two or more independent states ai-e : "(a) Capacity of the parties to contract. "(6) Duly-empowered agents to act on behalf of the states. "(c) Freedom of consent. " (cZ) The object of the contract must be in conformity to law. "Every independent state is cap- able of entering into treaties with another state or states, but the fundamental law of a state may impose certain restrictions upon CH. IV.] TREATY-MAKING POWER OF FEDERATIONS. § 119 § lis. Commeiicemeut of modern period of international law. — Although treaties and leagues existed in ancient and medieval times, they did not begin to assume the prominent part in the political history of the world which they have since attained, and now occup}'", until the middle of the seventeenth century and shortly after Hugo Grotius, whose memory was so fitly celebrated by the American delegates to the Peace Conference at The Hague, had surprised all thinking men with his great book De Jure Belli ao Pacis^ published in 1625. According to Dr. Wheaton, whose views in this respect have been generally adopted, the peace of Westphalia of 1618, which was evidenced by the treaty made at that time and place between the principal nations of Europe, may be chosen as the epoch from which the history of modern international law commences ; this great transac- tion marks a most important era, not only in the history of international law, but also in the progress of European civili- zation.i § 119. Disregard of colonies in treaties made by Euro- pean powers as to American affairs. — From that time it became the settled custom of the great powers of Europe to the method of enteriug into such agreements, which must be taken into consideration by the parties to the contract. In the United States and other confederations the execu- tive or treaty-making power cannot finally conclude treaties without the consent of the legislative bodies- The latter have to concur, and up to the time that this final consent of the concurring body has been obtained the other parties to the contract can withdraw their as- sent, unless this right has been waived." Glenn's International Law, St. Paul, 1895, pp. 139-142. LAWRENCE. "We will now pass on to con- sider the treaty-making power and its methods of action, in so far as they are dealt with by International Law. In each state the ri^ht of making treaties rests with those authorities to whom it is confided by the political constitution. As long as there is some power in a country whose word can bind the whole body politic, other states must do their international busi- ness with it, and have no right to inquire into its natui-e and the cir- cumstances of its creation. But other important matters connected with treaties are of international concern. The first of these to be discussed is The nature and neces- sity of ratification.'''' Lawrence's Principles of International Law, sec. 152, Boston, 1895, p. 284. §118. iWhoaton's History of the Law of Nati8; and see also Penhallnw vs. Boane, U. S. Sup. Ct. 1795, 3 Dallas 54, Pater- son, J. ; IT'rtre vs. Hylton, U. S. Sup. Ct. 1796,3 Dallas 199, Chase, J. ; ex- tracts from these opinions as quoted in Story's Commentaries will be found in note 1, under § 143, p. 246, post of this volume; also CJmholm vs. Georgia, U. S. Sup. Ct. 1793, 2 Dallas 419, nnd see § 1.38, p. 242, post. 238 §137. 1 Harcourt vs. Gaillard, U. S. Sup. Ct. 1827, 12 Wheaton, 523, John- son, J., in which it was held, as stated in the syllabus, that "A grant made by the British gov- ernor of Florida, after the declara- tion of independence within the territory lying between the Miss- issippi and the Chatahouchee riv- ers, and between the 31st degree of north latitude, and a line drawn from the mouth of the Yazoo river due east to the Chatahouchee, is invalid as the foundation of title in the Courts of the United States." Chishohn vs. Georgia, U. S. Sup. Ct. 1793, 2 Dallas 419, and see fur- ther reference to this case in § 138, p. 242, post, and extract from opin- ion of Jay, Ch. J., in note under § 143, p. 246, post. ■^The Battle of Lexington was fought April 19, 1775. See note on national unity prior to Declaration en. v.] TREATIES OF THE CONFEDERATION. §137 for the joint benefit of all the people of the good colonies of North America.^ This demonstrated the co-ordinate births of the principles of unity and independence in our national of Independence under § 147, p. 254, post. 3 Tlie Declaration of Independ- ence did not have tlie usual pre- amble and recital as to the names of the States or colonies; in fact the names of the colonies do not appear in the document; through- out the document the word " we " is used without any declarative words whatsoever, leaving it sim- ply to the persons signing it to specify in what capacity it was ex- ecuted. Tlie concluding sentence is as follows: " We, therefore, the Representa- tives of the United States of Amer- ica In General Congress, assem- bled, appealing to the Supreme Judge of the World for the recti- tude of our intentions, do, in the Name, and by Authority of the good People of these Colonies sol- emnly Publish and Declare, That these United Colonies are, and of Right ought to be Free and Inde- pendent States; that they are Ab- solved from all Allegiance to the British Crown, and that all politi- cal connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, con- tract Alliances, establish Com- merce, and to do all other Acts and Things which Independent States may of right do. And for the sup- port of this Declaration, with a firm reliance on the Protection of Divine Providence, We mutually pledge to each other our Lives, our Fortunes and our sacred Honor." BURGESS. " Complete geographical separa- tion and a partial ethnical separa- tion from the motherland, together with complete geographical unity, substantial ethnical unity, and al- most complete identity of interests among themselves were the forces which conspired, at last, to awaken the consciousness of the people of these thirteen colonies to the fact that they had attained the natural conditions of a sovereignty, — a State. The impulse to objectify this consciousness in institutions became irresistible. Its first en- during form was the Continental Congress. This was the first or- ganization of the American state. From the first moment of its exist- ence there was something more upon this side of the Atlantic than thirteen local governments. There was a sovereignty, a state; not in idea simply or upon paper, but in fact and in organization. The rev- olution was an accomplished fact before the declarntion of 1776, and so was independence. The act of the 4th of July was a notification to the world ot fails accomplis. A nation and a state did not spring into existence through that decla- ration, as dramatic publicists are wont to express it. Nations and states do not spring into existence. The significance of the proc-lama- tion was this: a peoj)le testified thereby the consciousness of the fact that they had become, in the progressive development of history, one whole, scj)arate, and adult na- tion, and a national state, and that they were determined to defend this natural status against the now 239 s 137 TREATY-MAKING POWER OF THE U. S. [CH. V. political history. It has been so decided by the Supreme Court.^ Stor}', in his Commentaries, says " that the colonies no longer natural supremacy of a foreign state. Freuch statesmen had foreseen and predicted this de- velopment and result a decade be- fore the stamp act. The American state, organized in the Continental Congress, proclaimed to the world its sovereign existence, and pro- ceeded, through this same organi- zation, to govern itself generally, for the time being and to authorize the people resident within the sep- arate cohmies to make temporary arrangement for their local govern- ment, upon the basis of the widest possible suffrage." Burgess' Po- litical Science and Constitutional Law, vol. I, p. 100. "This celebrated instrument, re- gai'ded as a legislative proceeding, was the solemn enactment, by the representatives of all the colonies, of a complete dissolution of their allegiance to the British crown. It severed the political connection between the people of this country and the people of England, and at once erected the different colonies into free and independent states. The body by which this step was taken constituted the actual gov- ernment of the nation, at the time, and its members had been directly invested with competent legislative power to take it, and had also been specially instructed to do so. The consequences flowing from its adop- tion were, that the local allegiance of the inhabitants of each colony became transferred and due to the colony itself, or as it was expressed by the Congress, became due to the laws of the colony, from which they derived protection; that the 240 people of the country became thenceforth the riglitful sovereign of the country; that they became united in a national capacity, as one people; that they could there- after enter into treaties and con- tract alliances with foreign nations, could levy war and conclude peace, and do all other acts pertaining to the exercise of a national sov- ereignty; and finally, that, in their national capacity, they became known and designated as the Uni- ted States of America. This Dec- laration was the first national state paper in which these words were used as the style and title of the nation. In the enacting part of the instrument, the Congress styled themselves 'the representa- tives of the United States of Amer- ica in general Congress assembled ; ' and from that period the previously ' United Colonies ' have been known as a political community, both within their own borders and by the other nations of tlie woild, by the title which they then assumed. " The title of ' The United States of America' was formally assumed in the Articles of Confederation, when they came to be adopted. But it was in iise, without formal enactment, from tlie date of the adoption of the Declaration of In- dependence. On the 0th of Sep- tember, 1776, it was ordered that in all continental commissions and other instruments, where the words 'United Colonies' had been used, the style should be altered to the 'United States.' Journals of Con- gress, vol II, p. 349." Curtis's Con- stitutional History of the United States, pp. 35-36, vol. 1. * For note 4, see p. 241. CH. v.] TREATIES OF THE CONFEDERATION. § 137 did not severall}' act for themselves, and proclaim their own independence." Continuing, he savs : " It is true that some of the States had previously formed incipient governments for themselves ; but it was done in compliance with the rec- ommendations of Congress. . . . But the declaration of independence of all the colonies was the united act of all. It was 'a declaration by the representatives of the United States of America in Congress assembled ' ; ' by the dele- gates appointed by the good people of the colonies,' as in a prior declaration of rights they were called. It was not an act done by the State governments then organized, nor by persons chosen by them. It was emphatically the act of the whole people of the united colonies, by the instrumentality of their representatives, chosen for that among other pur- poses. It was not an act competent to the State govern- ments, or any of them, as organized under their charters, to adopt. Those charters neither contemplated the case nor provided for it. It was an act of original, inherent sover- eignty by the people themselves, resulting from their right to change the form of government, and to institute a new one, whenever necessary for their safety and happiness. So the Declaration of Independence treats it. No State had presumed of itself to form a new government, or to provide for the exigencies of the times, without consulting Congress on the subject ; and when any acted, it was in pursuance of the recommendation of Congress. It was, therefore, the achievement of the whole for the benefit of the whole. The people of the united colonies made the united colonies free and independent States, and absolved them from all alle- giance to the British Crown. The Declaration of Independ- ence has accordingly always been treated as an act of para- mount and sovereign authority, complete and -perfect, per se, and ipso facto working an entire dissolution of all political connection with, and allegiance to, Great Britain. And this, not merely as a practical fact, but in a legal and constitutional view of the matter by courts of justice." ^ *See § 143, pp. 246, et seq. post, anrl extracts from Story, Curtis, Miller, Davis and Cooley, and cases 6 Commentaries on the Constitu- tion of the United States by Joseph Story, LL. D., 5th ed., Boston, cited on this point. ' 1891, vol. I, sec. 211, pp. 153-155. 16 241 § 139 TKEATY-MAKING POWER OF THE TJ. S. [CH. V. § 138. Chisholm vs. Georgia ; views of Chief Justice Jay. — This was also the decision in the case of Cliishohn vs. Geor- gia,^ in which it was held that the " Revolution, or rather, the Declaration of Independence, found the people already uni- ted for general purposes, and at the same time providing for then' more domestic concerns bj State conventions, and other temporary arrangements. From the Crown of Great Bri- tain^ the sovereignty of their countr}' passed to the people of it ; and it was then not an uncommon opinion, that the unap- propriated lands, which belonged to that Crown, passed not to the people of the Colony or State within whose limits they were situated, but to the whole people ; on whatever prin- ciples this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the Revolution, combined with local con- venience and considerations; the people nevertheless con- tinued to consider themselves, in a national point of view, as one people ; and they continued without interruption to man- age their national concerns accordingly ; afterwards, in the hurry of the war, and in the warmth of mutual confidence, they made a confederation of the States, the basis of a gen- eral government." § 139. Extent of Sovereignty in the Continental Con- gress. — From the time the first Continental Congress as- sembled at Philadelphia, September 5, 1771, until the present time there has been an active and unending discussion as to the extent of sovereignty which was vested in that Congress, either in its capacity as a revolutionary government prior to, or in its capacity as a Congress of delegates from various States subsequent to, the adoption of the Articles of Confed- eration. In many respects this has become a purely academic question ; it is, however, of vital importance, as a demonstra- tion of the truth of the statement already made, that at the very moment the colonies decided to throw off their allegiance to Great Britain, if not prior thereto, it was a recognized fact, and one which was acted upon from the moment that resolu- §138. ^ Chisholm vs. Georgia, U. S. Sup. Ct. 1793, 2 Dallas, 419, p. 462, Jay, Ch. J., Ikedell, Blaib, Wilson 242 and Gushing, JJ., and see extract from opinion of Jay, Ch. J., in note to § 143, p. 246, post. CR. V.J TREATIES OF THE CONFEDERATION. § 140 tion was framed until the Constitution was adopted, that the colonies in so doing acted, not in their separate and in- dividual capacities, but unitedly as one people, and as one nation, and that no steps were taken to achieve independence until it had been ascertained that unity of action had already been achieved. In fact, a long and interesting investigation of historical facts and documents, connected with these elements of the origin of our national life and of the opinions of many of our ablest historians and jurists, who have closely studied the subject in all of its varied aspects, has necessarily led to but one conclusion : that the duality of the Govern- ment of the United States, as hereinbefore expressed, to wit : as a federation only in regard to internal affairs, and as a nation in regard to all matters of common interest or ex- ternal relations, with every element of complete sovereignty and nationality vesting in the Central Government as to national matters, was coeval, and ever has been, co-existent, with the idea of independence and self-government of the colonies, and of the States ; and that as a principle of politi- cal science, or political history, the United States existed as an independent nation prior to the transformation of many of the colonies into States. § 140. States' Rights School contention The quota- tions already given from Story's Commentaries and from Chief Justice Jay's opinion in Chisliolm vs. Georgia^ show that the views expressed in the preceding section have been adopted by many great thinkers; notwithstanding these ex- pressions, however, as well as many others of a similar na- ture, there has been a constant effort on the part of the strict States' Eights School to divest the Continental Congress, in any and all of its capacities, of every right and power to ex- ercise the functions of a national government, and also to divest the government under the Confederation of every at- tribute of sovereignty, even including those powers which were absolutely essential for the prosecution of the revolu- tionary war, the preser-vation of the Union, the assertion and maintenance of independence and the estabhshment and proper conduct of the relations of the nation, or community, with other countries, and all of which powers were so neces- sary for the preservation of the whole and of each individual 243 § 142 TREATY-MAKING POWER OF THE U. S. [CH. V. part, that Congress actually exercised them whether it did so under an improper assumption of power or from the act- ual possession thereof; certainly the doctrine of omnviprcB- suinuntur rite esse acta ought to appl}^ in a case of this nature. § 141. Broader views of Marshall and others. — The theory of the nationality and sovereignty of the Central Government, as it appears from decisions made by Chief Jus- tices Jay and ^larshail, and as enunciated by Story, Curtis and Miller, is that a Government was constituted which not only possessetl the powers which were delegated to it by the Articles of Confederation, and hy the instructions of the dele- gates, but which also possessed inherently or, as Mr. Davis has expressed it in his notes to Justice Miller's Lectures, un- consciously, national and sovereign powers. Mr. Davis dis- cusses this view of the subject and shows by the actual work performed by the Continental Congress, as well as by the Congress under the Confederation, that elements of nation- ality and sovereignty must have existed, because the acts done could only have been accomplished by the exercise of sovereignty by a fully sovereign power, and not by one of limited or delegated powers; in fact, he says: "That the Statesmen in the Continental Congress felt that they formed part of a National Government, ruling, in its proper sphere, over a Federation of United States, and exercising powers to w^hich each of those States must of necessity be subordinate. . . . The simple truth is, that the United States, under the Articles of Confederation, like the United Colonies after the battle of Lexington, existed as a Sovereign PoAver from the necessities of the emergency. The Colonies were com- pacted together by the blows of a common enemy." ^ § 142. Views of Calhoun and Tucker John C. Calhoun and John Randolph Tucker have adopted what they called the separate or State unit system, and by elaborate argu- ments have endeavored to show that the earlier Congresses could not exercise any authority whatever prior to the adop- tion of the Articles of Confederation, except in pursuance of the instructions of delegates, and subsequently thereto only § 141, I tution; J. C. Bancroft Davis' notes 1 Miller's Lectures on the Consti- ' on Lecture I, p. 57. 244 CH. v.] TREATIES OF THE CONFEDERATION. §142 in pursuance of the strictly delegated authority contained in the instrument itself; in his Discourse on the Constitution and Government of the United States, Mr. Calhoun has elab- oratel}^ stated this proposition as his theory of State sover- eignty/ and Mr. Tucker in the treatise already referred to has elaborated upon, and endeavored to support, it by includ- ing as a part of his work all of the instructions of the States to their respective delegates,^ with the evident intention of proving thereby the limited bound, within which the powers of members individually, and of the Congress as a whole, were confined; also for the purpose of drawing a general deduction therefrom that beyond these limits no power or sovereignty existed whatever. This view is only sustain- able by eliminating every power which is granted, by the rules of international law and b}'^ the elementary principles of political science, to all revolutionary governments and to all central governments of confederations, and also by assert- ing that the exercise of those powers by the Continental Con- gress was wholly illegal. §142. 1 Works of John C. Calhoun; edi- ted by Richard K. Cralle, New Yorl£, April, 1888, Vol. 1, p. 110 et seq. 2 John Randolph Tucker declares " The Journal of the second session of Congress opens thus : ' A number of delegates from the colonies of New Hampshire, Massachusetts Bay, down to Soutli Carolina, agreeable to their appointment and orders received from their re.syjecfiye colonies.'' This statement settles adversely the assumption of Judge Story that the members of Con- gress were not the delegated agents of the governments of the colonies, but represented the original powers of the people. This record states that they sat under the 'appoint- ment and orders received from their respective colonies.' The author- ity given to the deputies to this Congress differs in terms from that given for the members of the prior Congress. A summary of each of these will be given in a note." Tucker on the Constitution, vol. 1, p. 215, Chicago, 1899. Then fol- lows in a note a summary of the instructions of all of the thirteen colonies with the exception of Rhode Island and Georgia, which, Mr. Tucker states, did not appear. The conclusion reached by Mr. Tucker is stated on page 217 as follows: "One thing is settled be- yond question; that the dogmatic statement of Judge Story that the Congress thus assembled exercised de facto and de jure a sovereign authority; not as the delegated agents of the governments de facto of the colonies, but in virtue of original power derived from the pe()i)le,' is wholly unsustained and is completely refuted by the facts." 245 § 143 TKEATY-:\IAKING POWER OF THE U. S. [CH. V. § 143. Tiews of Calhoun aud Tucker refuted by Justice Story and others. — Both i\[r. Calhoun and Mr. Tucker, how- ever, seem to have entirely lost sight of the propositions maintained by Story,^ Curtis,^ Cooley ^ Miller, Bancroft Davis, §143. 1 JUDGE story's views. "In confirmation of these views, it may not be without use to refer to the opinions of some of our most eminent judges, delivered on oc- casions which required an exact examination of the subject. In Chis- holm's Executors vs. The State of Georyia, Mr. Chief Justice Jay, who was equally distinguished as a Revolutionary statesman and a generLA.KINCr POWER OF THE U. S. [CH. VI. known as the New Jersey Plan ; in presenting it, he described it as being " more purely federal " than the one suggested by the Committee.^ The proposition consisted of a series of resolutions which were presented on the following day, June 15th ; the first resolution was to the effect " that the Articles of Confedera- tion ought to be so revised, corrected and enlarged, as to render the Federal Constitution adequate to the exigencies of government, and the preservation of the Union ;"^ he pro- posed to give the Federal judiciary jurisdiction in all cases involving the construction of treaties/ The sixth resolution was as follows : " 6. Resolved^ that all acts of the United States in Con- gress, made by virtue and in pursuance of the powers hereby, and by the Articles of Confederation, vested in them, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States, so far forth as those acts or treaties shall relate to the said States or their citizens ; and that the Judiciary of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding : and that if any State, or any body of men in any State, shall oppose or prevent the carrying into execu- tion such acts or treaties, the Federal Executive shall be au- thorized to call forth the power of the confederated States, or so much thereof as may be necessary, to enforce and compel an obedience to such acts or an observance of such treaties." ^ It will be seen that, so far as the treaty-making power was concerned, the only change suggested by Mr. Paterson was to enlarge the authority of the United States and to make treaties, not as Mr. Pinckney had suggested, " the supreme law of the land," but the " supreme law of the respective States ; " in fact, so important did he consider this treaty- making power that he considered it to be necessary not only States,' " Madison Papers, vol. II, p. 862, note. ^Idem, p. 862. but we would sooner submit to foreign power, than submit to be deprived in both branches of the legislature, of an equality of suf- frage, and thereby be thrown un- der the domination of the larger 306 3 Idem, p. 863. ■^Idem, p. 866. 5/dem, p. 866. CH. VI.] THE FEDERAL CONVENTION. § 176 to clothe the United States with power to enforce, and com- pel, obedience to the acts of Congress, but also to enforce the observance of all treaties made by the United States. § 17(5. Power to make and enforce treaties a practical matter in 1787. — In this respect it must be remembered that tlie discussion in the Constitutional Convention in regard to the supervisory powers of the Federal Government over the States in regard to the enforcement, and the prevention of violations, of treaty stipulations, was by no means either aca- demic, or confined to mere future possibilities ; at that time the country was in a great state of excitement over the proper enforcement of the provisions of the treaty of peace regard- ing the collection of debts owing by Americans to citizens of Great Britain,^ and also in regard to the navigation of the Mississippi River as it would be affected by the then pro- posed treaty with Spain, which, as the owner of Louisiana and New Orleans country, controlled the mouth of that river.^ It was therefore, in view of actually existing circum- stances that the Constitutional Convention not only declined to place any limitations upon the treats-making power, but also expressly provided that all treaties made, or which should be made, under the authority of the United States were paramount to the laws and the constitutions of the several States ; in fact, some of the burning questions of the day and hour were the treatment to be accorded to British creditors and American debtors, and the relative effect of treaty pro- visions providing for the payment of the debts to British cit- izens, and of the laws which had been passed by some of the States confiscating the identical debts for State use.^ Professor McMaster, in the Third Chapter of the First Volume of his able and interesting "History of the People of the United States," has given a detailed account of the conditions of the mercantile relations between this country and Great Britain as they were affected by the treaty stipu- §176. iSeo pp. 268, et seq., ante. 2 For the effect of this particular element upon the ratilication of the Constitution see § i222, po^t, rehit- ing to the Convention in Virginia. 3 See Ware vs. Ilijlton, U. S. Su- preme Ct., 1796, 2 Dallas, 199, and other cases collated in §§ 324 etiseq., Vol. II, pp. 6, et seq. 307 § 177 TREATY-MAKING POWER OF THE U. S. [CH. VI. lations, and the constriiclion and misconstruction thereof, n\\(\ the confusion which had resulted from the efforts made bv some of the legishituri's and courts to evade the provisions of the treaties in regard thereto.* § 177. Work of Couveiitioii continued ; Alexander Hamilton's views, June IStli. Mr. Madison's views, June 19tb. — The Convention again resolved itself into a Com- mittee of the Whole to consider jointly the plans proposed by Governor Eandolph, Mr. Pinckney and Mr. Paterson. "We cannot refer to all the differences between these va- rious plans, or the discussions in the Convention in regard thereto, as we must necessaril}" confine ourselves exclusively to the proceedings relating to the treaty-making power. On June 18th, Alexander Hamilton is reported as having taken part in the debate of the Convention for the first time on this subject. Before offering his resolution he made some remarks, prefacing them with the statement that he had hitherto kept silent " partly from respect to others whose su- perior abilities, age and experience, rendered him unwilling to bring forward ideas dissimilar to theirs, and partly from his delicate situation with respect to his own State, to whose sentiments, as expressed by his colleagues, he could by no means accede." ' After this modest disclaimer, the man who above all others was to aid and assist in the final ratification of the Constitution, when framed and submitted to the peo- ple, and to the State conventions, gave his reasojis for dis- senting to some extent from the plans before the Conven- tion, and urged that the strongest power possible be given to the Central Government. He then offered a series of resolutions in regard to the legislative and executive powers, one of which provided that the Executive should " with the advice and approbation of the Senate, hav^e the power of making' all treaties.''-^ During the debate which followed and extended through several succeeding sessions, Mr. Madi- son stated, on June 19th, that he did not think Mr. Pater- * Chapter III, The Low State of Trade and Commerce, John Bach McMastei's History of the People of the United States, New York, 1893, vol. I, p. 221. 308 § 177. 1 Madison Papers, vol. II, p. 878. 2 Idem, p. 891. CH. VI.] THE FEDERAL CONVENTION. §177 son's plan went far enough in the general surrender of po^yer to the Confederation ; in the course of his remarks, he said : ^ " Will it prevent the violations of the law of nations and of treaties which, if not prevented, must involve us in the calamities of foreign wars? The tendency of the States to these violations has been manifested in sundry instances. The files of Congress contain complaints already, from almost every nation with which treaties have been formed/ Hitherto indulgence has been shown us. This cannot be the perma- nent disposition of foreign nations. A rupture with other powers is the greatest of calamities. It ought, therefore, to he effectually provided, that no part of a nation shall ham it in its power to hring them on the ivhole. The existing Con- federacy does not sufficiently provide against this evil. The proposed amendment to it does not supply the omission. It leaves the will of the States as uncontrolled as ever." The views of some of the other members of the Convention as they were expressed in this debate are included in the notes to this section.^ 3 Madison Papers, vol. II, p. 896; (the italics are the author's.) * For the complaints to which Mr. Madison alluded see §§ 157, 164, ante. 5 Tuesday, June 19th, In Commit- tee of the Whole. "The first Resolution, 'that a national Government ought to be established, consisting, etc.,' being taken up, "Mr. Wilson observed that, by a national Government, he did not mean one that would swallow up the State Governments, as seemed to be wished by some gentlemen. He was tenacious of the idea of preserving the latter. lie thought, contrary to the opinion of Colonel Hamilton, that they might not only subsist, but subsist on friendly terms with the former. They were absolutely necessary for certain purposes, which the former could not reach. All large governments must be subdivided into lesser ju- risdictions. As examples, he men- tioned Persia, Rome, and particu- larly the divisions and subdivisions of England by Alfred. "Colonel Hamilton coincided with the proposition as it stood in the Report. He had not been un- derstood yesterday. By an aboli- tion of the States, he meant that no boundary could be drawn be- tween the National and State Leg- islatures; that the former must therefore have indefinite authority. If it were limited at all, the rival- ship of the States would gradually subvert it. Even as corporations, the extent of some of them, as Vir- ginia, Massachusetts, etc., would be formidable. As States, he thought they ought to be abolished. But he admitted the necessity of leaving them in subordinate juris- dictions. The examples of Persia and the Roman Empire, cited by Mr. Wilson, were, he thought, in 309 § 178 TREATY-MAKING POWER OP THE U. S. [CH. VI. §1TS. Mr. Patersou's views contr.asted with those of Ml". Madison and Mr. Hamilton. — The ost facto defence of the new institutions, but they show us with much clearness either the route by which the strongest minds among the American statesmen of that period had traveled to the conclusions embodied in the Constitution, or the arguments by which they had become reconciled to them. The 'Federalist' has generally excited something like enthusiasm in those who have studied it, and among these there have been some not at all given to excessive eulogy. Talleyrand strongly recommended it; and Guizot said of it that, intlie application of the elementary principles of government to practical administration, it was the greatest work known to him. An early number of the 'Edinburgh Review' (No. 24), de- scribed it as a ' work little known in Europe, but which exhibits a pro- fundity of research and an acuteness of understanding wliicli would have done honour to the most illustrious statesmen of modern times.' The American commendations of the 'Federalist' are naturally even less qualified. ' I know not,' wrote Chancellor Kent, 'of any work on the principles of free government that is to bo compared in instruction and in intrinsic value to this small and unpretending volume of the 'Federalist;' not even if we resort to Aristotle, Cicero, Machiavel, Mon- tesquieu, Milton, Locke, or Burke. It is equally admirable in the depth of its wisdom, the comprehensiveness of its views, the sagacity of its re- flections, and the freshness, patriotism, candonr, simplicity, and elo- quence, with which its truths are uttered and recommended.' Those who liave attentively read these papers will not think such praise pitched, on the whole, too high. Perhaps the part of it least thor- oughly deserved is that given to their supposed profundity of research. 375 § 237 TREAT Y-MAKIXG POWER OF THE TJ. S. [CH. YIJI. has Oil more than one occasion referred to it in decidino; con- There are few traces in the 'Federalist' of familiarity with previous speculations on politics, except those of Montesquieu in the 'Esprit des Lois,' the popular book of that day. The writers attach the greatest importance to all Montesquieu's opinions. They are much discom- posed by his assertion, that Republican government is necessarily asso- ciated with a small territory, and they are again comforted by his admis- sion, that this difficulty might be overcome by a confederate Keptiblic. Madison indeed had the acuteness to see that Montesquieu's doctrine is as often jjolemical as philosophical, and that it is constantly founded on a tacit contrast between the institutions of his own country, which he disliked, with those of England, which he admired. But still his analysis, as we shall hereafter point out, had much influence upon the founders and defenders of the American Constitution. On the whole, Guizot's criticism of the 'Federalist' is the most judicious. It is an invaluable work on the apjolication of the elementary principles of gov- ernment to practical administration. Nothing can be more sagacious than its anticipation of the way in which the new institutions would actually work, or more conclusive than its exposure of the fallacies which underlay the popular objections to some of them. "It is not to be supposed that Hamilton, Jay, and Madison were care- less of historical experience. They had made a careful study of many forms of government, ancient and modern. Their observations on the ancient Republics, which were shortly afterwards to prove so terrible a snare to French political theorists, are extremely just. The cluster of commonwealths woven together in the ' United Netherlands ' is fully examined, and the weaknesses of this anomalous confederacy are shrewdly noted. The remarkable structure of the Romano-German Empire is depicted, and there is reason to suspect that these institu- tions, now almost forgotten, influenced the framers of the American Constitution, both by attraction and by repulsion. But far the most important experience to which they appealed was that of their own country, at a very recent date. The earliest link had been stipplied to the revolted colonies by the first or American 'Continental' Congress, which issued the Declaration of Independence. There had subsequently been the 'Articles of Confederation,' ratified in 1781. These earlier experiments, their demonstrable miscarriage in many particulars, and the disappointments to which they gave rise, are a storehouse of in- stances and a plentiful source of warning and reflection to the writers who have undertaken to show that their vices are removed in the Con- stitution of 1787-89. "Nevertheless, there is one fund of political experience upon which the 'Federalist' seldom draws, and that is the political experience of Great Britain. The scantiness of these references is at first sight inex- plicable. The writers must have understood Great Britain better than any other country, except their own. They had been British subjects during most of their lives. They had scarcely yet ceased to breathe the atmosphere of the British Parliament and to draw strength from 376 ^ CH. VIII.] THE GREAT NATIONAL DEBATE. § 237 stitutional questions, always with respect, although on some points it has not agreed with the authors, notably in regard its characteristic disturbances. Next to their own stubborn valour, the chief secret of the colonists' success was the incapacity of the English generals, trained in the stiff Prussian system soon to perish at Jena, to adapt themselves to new conditions of warfare, an incapacity which newer generals, full of admiration for a newer German system, were again to manifest at Majuba Hill against a meaner foe. But tlie colo- nists had also reaped signal advantage from the encouragements of the Britisli Parliamentary Opposition. If tiie King of France gave 'aid,' the English Opposition gave perpetual 'comfort' to tlie enemies of the King of England. It was a fruit of the English pai'ty system which was to reappear, amid much greater public dangers, in the Peninsular War; and tlie revelation of domestic facts, the assertion of domestic weakness, were to assist the arms of a military tyrant, as they had as- sisted the colonists fighting for independence. Various observations in the 'Federalist' on the truculence of party spirit may be suspected of having been prompted by the recollection of what an Opposition can do. But there could be no open reference to this in its pages; and, on the whole, it cannot but be suspected that the fewness of the appeals to British historical examples had its cause in their unpopularity. The object of Madison, Hamilton, and Jay was to persuade their country- men; and the appeal to British experience would only have provoked prejudice and repulsion. I hope, however, to show that the Constitu- tion of the United States is coloured throughout by political ideas of British origin, and that it is in reality a version of the British Consti- tution, as it must have presented itself to an observer in the second half of the last century." (Citing especially Numbers 5, 14, 19, 20, 69 and 70, and referring to Bancroft's History of the Constitution of the Uni- ted States, v(d. II, p. 330.) Popular Government, Sir Henry Sumner Maine, John Murray, London, 1885, Essay IV, pp. 202-207. A FRENCH VIEW OF THE FEDERALIST. In Hamilton's edition of the Federalist the following occurs (page Ixxxviii), after referring to some of the earliest American editions: " No other edition was published in the United States until the year 1802, three or more translations— the first in 1792 — having, in the meantime, appeared in Paris, during the exciting discussions which then occupied the people of France. Talleyrand appreciating it, said to the Due D'Aranda, envoy at the French Court from Spain— 'Vouz avez In Le Fed('raliste?'— 'Non,' replied D'Aranda,— ' Lisez done lisez,' was the significant answer. Guizot, another distinguished statesman of Franco, observed, ' In the application of elementary princij)les of government to practical administration, it was the greatest work known to him.' " See also the opinions of Chancellor Kent and Mr. Justice Story referred to in Hamilton's Edition of the Federalist immediately following the above quotation. 377 § 239 TREATY-MAKING POWER OF THE U. S. [CH. VIII. to the effects of treaties with foreign powers, as contracts and as laws.^ § 238. Treaty-niakiug power referred to in the Federalist and in other pnblications. — The treaty-making power vested by the Constitution in the Central Government was equally prominent as a factor in this National discussion as it had been in the several State conventions to which reference has been made in the preceding chapter. It would require too much space to quote all that appears in the Federalist and other pamphlets, published at that time, on the subject of treaties, and the treaty -making power ; the few selections quoted in the text and the notes show that the people at large, as well as the delegates to the conventions, thoroughly understood what a far-reaching power it was, how exclusively it was lodged in the Central Government, and how necessary this was to the future peace and happiness of the Union. The authors of the Federalist seem to have considered these prop- ositions elementary principles for the government of confed- erated Republics. § 239. The Federalist, No. XXII, reference to treaties. — Referring to treaties the author of No. XXII,' says: " A circumstance which crowns the defects of the Con- federation remains yet to be mentioned, — the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force, at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be sub- mitted, in the last resort, to one supreme tribunal. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final §237. 3 See § 320, p. 46®, post. For views of Chief Justice Marshall as to the Federalist and Alexander Hamilton, see Cohens vs. Virgivia, U. S. Sup. Ct., 6 Wheaton, 264, Marshall, Ch. J. 378 § 239. 1 Published in the New York Packet, Friday, December 14, 1787; credited by Lodge to Hamilton. CH. VIII.] THE GREAT NATIONAL DEBATE. § 240 jurisdiction, there may be as many different final determina- tions on the same point as there are courts. There are end- less diversities in the opinions of men. We often see not only different courts but the judges of the same court differ- ing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a num- ber of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, pos- sessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice. . . . The treaties of the United States, under the present Constitution,^ are liable to the infractions of thirteen differ- ent legislatures, and as many different courts of final juris- diction, acting under the authority of those legislatures. The faith, the reputation, the peace of the w^hole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or con- fide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation ? " § 240. The Federalist, No. XXIII, the treaty-making power should have no constitutional shackles The author of No. XXIII,! gives his reasons for believing that the powders entrusted to the federal government, in which that of treaty- making is included, "ought to exist without limitation, le- cause it is impossible to foresee or define the extent and variety of national exigencies, or the corresponde7it extent and variety of the means which may he necessary to satisfy them? The circumstances that endanger the safety of nations are infi- nite, and for this reason no constitutional shackles can wnsely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances ; and ought to be under the direction of the same councils which are appointed to pre- side over the common defence." '^ Refers to Articles of Confedera- tion. §240. 1 Published in the New York Packet, Tuesday, December 18, 1787; credited by Lodge to Hamil- ton. 2 The italics are so in Lodge's edition. 379 § 243 TREATY-MAKING POWER OP THE U. S. [CH. VIIT. § 241. The Federalist, No. XXXIX; duality of the Cen- tral Goveriimeut. — A strong exposition of the duality of the Federal-Xational Government ^Yill be found in No. XXXIX/ in wliich the author declares, in the final sentence, in support of his point that the proposed Constitution is not, strictly- speaking, either National or Federal, but is a composition of both, that : " In its foundation it is federal, not national ; in the sources from which the ordinary powers of the gov- ernment are drawn, it is partly federal, and partly national ; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national ; and, finally, in the authoritative mode of introducing amend- ments, it is neither wholly federal nor wholly national." § 242. The Federalist, No. XLII ; treaties with foreign nations. — In Xo. XLII^ the power to make treaties with foreign nations is again referred to, and the author of that number makes these concise remarks made in regard thereto : "This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations. " The powers to make treaties and to send and receive ambassadors, speak their own propriety. Both of them are comprised in the articles of Confederation, with this differ- erence only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantiall}^ frustrated by regulations of the States." § 243. The Federalist, No. XLV ; enlargement of con- gressional powers. — In Xo. XLV^t is stated that the change from the articles of Confederation to the Constitution con- sisted much less in the addition of new^ powers to the Union than invigoration of its original powers. Continuing, the Federalist says: "The regulation of commerce, it is true, is a new power ; but that seems to be an addition which few §241. 1 Published in the Independent Journal (date ncit given); credited by Lodge to Madison. § 242. 1 Published in the New York by Lodge to Madison, 380 Packet, Tuesday, January 22, 1788; credited by Lodge to Madison. § 243. 1 Published in the Independent Journal (date not given); credited CH. VIII.] THE GREAT NATIONAL DEBATE. § 245 oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Con- federation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of admin- istering them." § 24i. The Federalist, No. LXIV ; importance of treaty- makiug power — In No. LXIV,^ after quoting the section giving power to the President to make treaties by and with the consent of the Senate, provided that the requisite num- ber concur, the author says : " The power of making treaties is an important one, especially as it relates to war, peace, and commerce ; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. The convention appears to have been atten- tive to both these points : they have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose ; and they have com- mitted the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elec- tions by the people in their collective capacity, where the activity of party zeal, taking advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors." § 245. The Federalist, No. LXIV ; same subject con- tinued. — The author again says, in the same number: "It was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them." Continuing, he says: "It seldom ha|)pens in the negotiation of treaties, of what- ever nature, but that perfect secrecy and immediate despatch §244. j Packet, Friday, March 7, 1788; I Published in the New York ' credited by Lodge to Jay. 381 § 245 TREATY-MAKING POWER OF THE U. S. [CH. VIII. are sometimes requisite. There are cases where the most useful iutelligence may be obtained, if the persons possess- ing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives ; and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular Assembly. The convention have done well, there- fore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest." After showing the wisdom of confiding the treaty-making power to the Executive, and to the Senate, that being the smaller body of Congress and therefore better fitted for the purpose on account of the secrecy and despatch requisite in the negotiation of treaties, the Federalist answers those who had objected to the provision making treaties the supreme law of the land by saying, in the same number:^ "Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleas- ure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only an- other name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely^ but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them ; and it will not be disputed that they who make treaties may alter or cancel them ; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever after- §245. iXo. LXIV. 382 CH. VIII.] THE GREAT NATIONAL DEBATE. § 246 Avards be to alter or cancel them. The proposed Constitu- tion, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government." ^ It must be noted, however, that the views expressed by the Federalist in this number have not always been acquiesced in, or followed by, the Supreme Court. This will be referred to at length in a subsequent chapter on the relative effects of treaty stipulations and United States statutes.^ § 246. The Federalist, No. LXIX : the treaty-making power of the United States compared with that of Great Britain. — In No. LXIX^ the treaty-making power as vested in the President and Senate is compared to the treaty-making power as exercised by the king of Great Britain and the reasons for the vesting the treaty-making power, in its widest scope in the Executive, are given as follows : " The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make trea- ties of peace, commerce, alliance, and of every other descrip- tion. It has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification, of Parliament. But I believe this doctrine was never heard of, until it was broached upon the present occa- sion. Every jurist^ of that kingdom, and every other man acquainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in utmost plenitude ; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction. 2 For views of John Jay on the treaty-making power of the con- federation, see his letter to Con- gress referred to at length in note 4 under § 157, p. 268, et sec/., ante. ^ See note 3 under § 237, p. 378, ante, and § 313, p. 449, post. § 246. 1 Published in the New York Packet, Friday, Maich 14, 1788, credited by Lodge to Hamilton. 2 The Federalist here cites Black- stone's Commentaries, vol. I, p. 257. 383 § 247 TREATY-MAKING POWER OF THE U. S. [CH. Vin. The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipu- lations in a new treaty ; and this may have possibly given birth to the imagination, that its cooperation was necessary to the obligatory efficacy of the treaty. But this parliamen- tary interposition proceeds from a different cause : from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty ; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can only do with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the power of the federal Executive ^vould exceed that of any State Executive. But this arises naturally from (the exclusive possession by the Union of that part of)Hhe sovereign power which relates to treaties. If the Confederacy were to be dissolved, it would become a question, whether the Executives of the several States were not solely invested with that delicate and important prerogative." § 24:7. The Federalist, No. LXXV ; advantages of the Uni- ted States plan ; treaties as contracts. — In Number LXXV ^ the Federalist again reverts to the provision that the President " is to have power, ' by and with the advice and consent of the Senate to make treaties, provided two thirds of the Sena- tors present concur.' " In support of this provision he says that although it has been assailed on different grounds with no small degree of vehemency, he does not scruple to declare his firm persuasion that it is one of the best digested and most un- exceptionable parts of the plan. He discusses and shows the advantages of the system as compared with the alternative methods of placing the power in the hands of the President alone, or of the Senate alone, or of allowing the House of 3 The words in parenthesis ap- pear in Da\vson''s edition of the Federalist, but are omitted in Lodge's edition. 384 §247. 1 Published in the Independent Journal (date not given); credited by Lodge to Hamilton. CH. Vin.] THE GREAT NATIONAL DEBATE. § 248 Representatives to participate therein. He demonstrates that requiring the concurrence of two thirds of the whole Senate instead of those present, would have proved an em- barrassment rather than a benefit. In speaking of treaties in this number, the Federalist takes the ground that treaty-making is not either strictly executive or legislative; in this respect he says: "The power of mak- ing treaties is, plainly, neither the one nor the other. It re- lates neither to the execution of the subsisting laws, nor to the enaction of new ones, and still less to an exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sov- ereign and sovereign. The power in question seems there- fore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive." As stated in a previous section, we shall have occasion to refer again to these views of the Federalist in a subsequent chapter." § 24S. The Federalist, No. LXXX ; treaty-making power of National Government necessary for peace of Union. — In Number LXXX^ the necessity of submitting the matters involving the peace of the Union to the national judiciary is stated as follows : " The fourth point rests on this plain prop- osition, that the peace of the whole ought not to be left at the disposal of a pakt. The Union will undoubtedly be an- swerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accom panied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the 2See § 245, p. 381, ante, and § ;313, I as being taken from McLean's p. 449, post edition of 1788 and credited to § 248. Hamilton. 1 In Lodge's edition this is stated I 25 385 TREATY-MAKING POWER OF THE U. S. [CH. VIU. public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which vio- lated the stipulations of a treaty or the general law of na- tions. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals." § 249. Authorship of the Federalist.— The author of this volume does not intend to enter into any discussion as to the authorship of the various numbers of the Federalist ; ^ there can be no doubt that in the various extracts given the views expressed on the treaty -making power represented the opin- ions of Madison, Hamilton and Jay, all of whom were thor- oughly conversant with the history of confederated govern- ments, and the general rules of political science connected therewith ; the most casual examination of the records of the Federal and State Constitutional Conventions, and of the Federalist, will show that no men were better qualified to §249. iMr. Lodge devotes Part I of his Introduction to the authorship of the "Federalist" (pp. xxiii- xxxv). On page xxiii he says: *' The discussion about the ' Feder- alist' began nearly seventy years ago has continued at intervals down to the present day (1894), and culminated some twenty years since in two most elaborate essays, one by Mr. Henry B. Dawson, the other by Mr. John C. Hamilton, which were prefixed to the editions of the 386 'Federalist,' published by those two gentlemen respectively. It is of course idle to suppose that any thing cannot be written which will convince or satisfy everybody as the true answer to this long mooted question." The reader of this book is referred to the three editions of the "Federalist" above referred to, all of which have tables in the introductions giving the various claims as to the authorship of the " Federalist." CH. Vm.] THE GREAT NATIONAL DEBATE. § 251 express opinions upon the subjects than the three authors of the Federalist. No. LXIV ^ which was devoted entirely to a discussion of treaty-making power, was undoubtedly the work of John Jay, who had been Secretary of Foreign Rela- tions under the Confederation, and had represented the Uni- ted States in foreign countries, and who subsequenth^ per- formed the duties of Secretary of State for a brief period under President Washington, was Minister to England, and negotiated the treaty with that country, which has always borne his name, and who was also the first Chief Justice of the United States. Surely no one could be better qualified to speak upon the subject of treaty-making than that emi- nent jurist who had devoted so much of his life thereto and whose utterances in that regard have always been rightly considered as entitled to the greatest weight and respect.^ § 250. Other imblications prior to ratification. — Even at the risk of devoting too much space to this class of litera- ture, a few other extracts from pamphlets published during the ratification contest will be given, and in order to show that it was by no means a one-sided affaii' some will be se- lected from pamphlets published with the hope, and for the pui'pose — fortunately unsuccessful — of defeating the ratifica- tion of the Constitution.^ §251. Richard Henry Lee's opposition; the "Federal Farmer." — Richard Henry Lee of Virginia, a bitter opponent 2 See §§ 244-5, pp. 381, et ^eq,, ante. 3 See note 4, § 156, pp. 268, et seq., ante. §250. 1 A number of letters which will both so peculiarly needed, and so especially advantageous to the State of Massachusetts, tliat its adoption was only endangered by certain questions of local i)olitics, which could not even enter into be found in Ford's Essays and | the discussion. They were no- Pamphlets were written in op- ticed.or replied to, inthe Massachu- posiLion to the adoption of tlie ' setts Gazette, December 21, 1787, Constitution in Massachusetts; of these, Mr. Fiu'd states ( p. 51, Essays ) that the letters of "Agrippa'^ by "Charles James Fox;" De- cember 27, 1787, and January 4, 1788, by "Kempis O'FIannigan," were the ablest anti-federal pub- January 22 and January 25, 1788, lications printed in Massachusetts, and showed especial ability in ar- guing the dangers and defects of a plan of government which was by "Junius," and in the letters of "Cassius," printed in the same volume. 387 § 251 treaty-]\lve:ing power of the u. s. [ch. vm. of the Constitution, expressed his views under the title of " The Federal Farmer " in regard to treaties as follows : "•ith. There are certain rights which we have always held sacred in the United States, and recognized in all our con- stitutions, and which, by the adoption of the new constitu- tion in its present form, will be left unsecured. By article 6, the proposed constitution, and the laws of the United States, which shall be made in pursuance thereof ; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land ; and the judges in every state shall be bound thereby ; anything in the constitution or laws of any state to the contrary not- withstanding. " It is to be observed that when the people shall adopt the proposed constitution it will be their last and supreme act ; it will be adopted not by the people of New Hampshire, Massachusetts, etc., but by the people of the United States; and wherever this constitution, or any part of it, shall be incompatible with the ancient customs, rights, the laws or the constitutions heretofore established in the United States, it will entirely abolish them and do them away : And not only this, but the laws of the United States which shall be made in pursuance of the federal constitution will be also supreme laws, and wherever the}' shall be incompatible with those cus- toms, rights, laws or constitutions heretofore established, they will also entirely abolish them and do them away. " By the article befoi-e recited, treaties also made under the authority of the United States, shall be the supreme law : It is not said that these treaties shall be made in pur- suance of the constitution — nor are there any constitutional bounds set to those who shall make them : The president and two thirds of the senate will be empowered to make treaties indefinitely, and when these treaties shall be made, they will also abolish all laws and state constitutions incom- patible with them. This power in the president and senate is absolute, and the judges will be bound to allow full force to whatever rule, article or thing the president and senate shall establish by treat}'', whether it is practicable to set any bounds to those who make treaties, I am not able to 388 CH. VIII.] THE GREAT NATIONAL DEBATE. § 253 say ; if not, it proves that this power ought to be more safely lodged."^ § 252. George Mason's protest. — George Mason, who was also a bitter opponent of the Constitution published a violent pamphlet attacking it in many respects; he con- sidered that by declaring all treaties supreme laws of the land the Executive and the Senate had in many instances an exclusive power of legislation which might have been avoided by proper distinction with respect to treaties, by requiring the assent of the House of Representatives.^ § 253. Judge Iredell's answer; " Marcus. "^Judge Ire- dell of North Carolina to whose able work in the convention of that State we have already alluded ^ and to whom we shall allude in a later chapter, in regard to his opinion in the great case of Ware vs. Jli/lton in which the treaty-making power under the Constitution was discussed and construed,^ answered Colonel Mason under the name of " Marcus," in one of the best pamphlets published during the period. In regard to the treaty-making power Judge Iredell argued that it was already the law of the land and had been so determined by Congress in unanimously resolving to adopt the very sensible letter of Mr. Jay's^ to the effect "that a treaty when once made pursuant to the sovereign authority, ex vi teinnini became immediately the law of the land." Continuing, Judge Iredell said : " It seems to result unavoidably from the nature of the thing, that when the constitutional right to make treaties is exercised, the treaty so made should be binding upon those who delegated authority for that purpose. If it was not, what foreign power would trust us? And if this right was restricted by any such fine checks as Mr. Mason has in his imagination, but has not thought proper to disclose, a critical occasion might arise, when for want of a lit- tle rational confidence in our own government, we might be obliged to submit to a master in an enemy. Mr. Mason wishes §251. 1 Ford's Pamphlets on the Con- stitution, p. 311. The punctuation is so in the oi'iginal. §252. 1 Ford's Pamphlets on the Con- stitution, pp. 327, et seq., sec p. 331. §253. 1 See § 227, p. 360, ante. 2 See § 328, Vol. II, p. 9. 3 For an extended reference to Jay's report, or letter, see note un- der § 156, pp. 268, et seq., ante. 389 § 254 TREATY-MAKING POWER OF THE U. S. [CH. VIII. the House of Representatives to have some share in this busi- ness, but he is immediately sensible of the impropriety of it, and adds ' where it can be done witli safety.' And how is it to be known whether it can be done with safety or not, but dur- ing the pendency of a negotiation ? Must not the President and Senate judge whether it can be done with safety or not? If they are of opinion it is unsafe, and the House of Repre- sentatives of course not consulted, what becomes of this boasted check, since, if it amounts to no more than the Pres- ident and Senate may consult the House of Representatives if they please, they may do this as well without such a pro- vision as with it. i^othing would be more easy than to as- sign plausible reasons, after the negotiation was over, to show that a communication was unsafe, and tlierefore surely a pre- caution that could be so easily eluded, if it was not impolitic to the greatest degree, must be thouo-ht trifling indeed. It is also to be observed, that this authority, so obnoxious in the new Constitution (which is unfortunate in having little power to please some persons, either as containing new things or old), is vested indetinitel}^ and without restriction in our present Congress, who are a body constituted in the same manner as the Senate is to be, but there is this mate- rial difference in the two cases, that we shall have an addi- tional check, under the new system of a President of high personal character chosen by the immediate body of the people." 4 § 254. David Ramsay's letters ; " Civis."— David Ram- say of South Carolina, who had also been a delegate to his own State convention, issued an address to his friends, countrymen, and fellow citizens under the title of " Civis " in which he disposed of the objections as to the treaty-making power as follows: "It has been objected, that the president, and two-thirds of the senate, though not of your election, may make treaties binding on the state. Ask these objectors — do you wish to have any treaties ? They will say yes. Ask then who can be more properly trusted with the power of making them, than they to whom the convention have referred it ? Can the state legislatures ! They would consult their local * Ford's Pamphlets on tlie Constitution, pp. 333, et seq., see p. 355. 390 CH. VIII.] THE GREAT NATIONAL DEBATE. § 255 interests. — Can the Continental House of Representatives ? When sixty-five men can keep a secret, they may. — Observe the cautious guards which are placed round your interests. Neither the senate nor president can make treaties by their separate authority. — They must both concur. — This is more in your favour than the footing on which you now stand. The delegates in Congress of nine states, without your con- sent, can now bind you; by the new constitution there must be two-thirds of the members present, and also the president, in whose election you have a vote. Two-thirds are to the whole, nearly as nine to thirteen. If you are not wanting to yourselves by neglecting to keep up the state's compliment of senators, your situation with regard to pre- venting the controul of your local interests by the Northern States, will be better under the proposed constitution than it is now under the existing confederation." i § 255. Public knowledge as to the treaty-making power and its effects. — Any one, therefore, who examines the records of the great contests over the adoption of the Con- stitution in the State conventions, and in the country at large, must inevitably reach the conclusion, that Article VI, making treaties the supreme law of the land and paramount to all State legislation, was based upon the acknowledged weakness of the Confederation, not only as to the making of treaties, but also as to enforcement and fulfilment of treaty obligations. It is also apparent that a majority of the people, includ- ing many who were opposed to the Constitution on other grounds, considered that in our relations with foreign powers, whether the subject-matter related to national affairs, or those within the control of the States, or even of individuals, the Central Government must be clothed with the absolute and exclusive power to negotiate and conclude treaties of every class ; that it had been effectually demonstrated that the pol- icy adopted by the Confederation, in regard to the treaty of peace with Great Britain, of urging legislation upon the va- rious States to carry treaty stipulations into effect was an im- practicable and unsatisfactory method of dealing with foreign powers ; that the unwillingness or failure of many of the States §254. I Fords' Pamphlets on the Constitution, p. 376. 391 § 256 TREATY-MAKING POWER OF THE U. S. [cH. VIII. to act in accordance with the suggestions of Congress, or their subsequent unwillingness or inability to conform to the conditions of the treaty, bad placed us in an unenviable posi- tion with all the foreign powers, many of whom had lost confidence in us, and to whom the United States were ' fast becoming objects of ridicule, rather than of the great respect to which, as a nation, they were entitled ; that under the new Constitution, and in a large measure owing to the additional powers with which Article VI clothed the Central Govern- ment, this confidence and respect were immediately regained, and have ever since been retained, as they undoubtedly always will be if we continue to recognize that those powers right- fully exist and that the}^ should be exercised on every proper occasion. Xor can the position ever be taken that the various clauses in regard to treaties and the treaty-making power in the Constitution were not appreciated, or were in any way disregarded, by the people in the discussions upon the ratifi- cation of that instrument ; the reverse of this proposition was indeed the fact. § 256. Importance of treaty-making power appreciated by the people, and by the delegates to State conventions. — The records of the State conventions show that the dele- gates were fully alive to the importance, and the far-reaching extent, of the power ; and that the possibility of its being used to the detriment of the States formed an important factor in the discussions in the conventions; the extracts quoted from the pamphlets of the day show that it was not only discussed in the State conventions, but that it was also discussed and considered by the people themselves. In the next chapter we will refer to the opinions expressed by some writers since the Constitution became the supreme law of the land, and which will show what they thought in regard to the extent of, and limitations upon, the treaty- making power of the United States. § 255. 1 The use of were instead of was in this instance is intentional as under the Confederation, after the close of the war, the States were driftinff so far from union that 392 they were regarded as separate en- tities by foreign powers rather than as the component parts of a single entity, as they sliould liave been, and have been since the adoption of the Constitution. CHAPTER IX. OPINIONS OF PUBLICISTS, HISTORIANS AND EXPOUNDERS OF THE CONSTITUTION IN REGARD TO THE EXTENT AND SCOPE OF THE TREATY-MAKING POWER OF THE UNITED STATES. Section 257 — Pre-ratificatioa literature necessarily academic. 258 — Different status of post-rati- fication literature. 259 — Treaty-making power fur- nishes many questions for discussion. 260 — Opinions of publicists — not judicial decisions — dis- cussed in this chapter. 261 — Views of William Rawle; 1825. 262 — Mr. Eawle's acquaintance with members of Constitu- tional Convention. 263 — Views of William A. Duer; 1833. 264 — George Ticknor Curtis' Con- stitutional History of the United States. 265 — Joseph Story, the commen- tator of the Constitution. 266— Story's views on Article VI of the Constitution. 267 — Judge Cooley's "Constitu- tional Limitations;" 1873. 268 — Professor Pomeroy's views. Section 269— Professor Pomeroy's broad views in regard to the Ex- ecutive and foreign rela- tions. 270 — Professor Pomeroy on State statutes and treaty stipu- lations. 271— Views of Story, Iredell and Pomeroy identical as to State statutes and treaty stipulations. 272 — Chancellor Kent's opinion, 273 — Numerous other opinions in support of broadest pow- ers. 274 — Narrower views of some authorities on the Consti- tution. 275 — John Randolph Tucker's views. 276 — John C. Calhoun's views. 277 — Improper use of treaty stip- ulations as to urging State legislation. 278 — This chapter confined to ex- tent of treaty-making power. § 257. Pre-ratification literature necessarily academic. — The extracts in the preceding chapter are all taken from pamphlets published for or against the Constitution before it was ratified, and when the effect and extent of its pro- visions could only be treated in a prophetic manner and from an academic standpoint. Written in the abstract, and based upon hypothetical con- ditions, they were, therefore, necessarily largely theoretical 393 5^ 259 TKKATV-MAKIN(i POWER OF THE U. S. [CH. IX. and did not relate to the application of the provisions of the Constitution to any concrete conditions; with the exception of the Federalist, few of them, if any, have ever been regarded by the courts as affording an}^ basis for the construction of any of the clauses of the Constitution ; in this volume they have been referred to, as evidence of the fact that the treaty- making power was thoroughly understood by the people be- fore the constitution was adopted, rather than as legal au- thority for the extent of the power.^ § 258. Different status of post-ratiflcatiou literature. — The moment, however, that the Constitution became the fundamental basis of the Government of the United States, practical questions, as to the interpretation and application of its provisions, arose, and from that time the literature re- garding the Constitution can be divided into two classes: First, views of expounders who have discussed it in com- mentaries and text-books from legal and political stand- points in connection with the adjudicated law of this and other countries ; second, decisions of the courts upon con- stitutional points which have arisen in actions at law and required the judicial construction and interpretation of the instrument itself, and in which the judges, delivering their opinions in regard thereto, have expressed their views as to the nature, scope and extent of the provisions of the Con- stitution involved in the actions, as well as to the general nature and powers of the Government of the United States. § 259. Treaty-making power furnishes many questions for discussion. — It will readily be seen that the nature and extent of the treaty-making power vested in the General Government by the Constitution, and of the effects of treaties upon the laws of the United States, and of the various States, have continuously afforded opportunities, both for the ex- pounders of the Constitution in treatises, and for the judges in decisions, to express their views on constitutional ques- tions ; in fact, as will be seen in the next chapter, one of the first great constitutional controversies in which the power of the Union was asserted, and was upheld by the Supreme Court as superior to the law of any of the States, related to iSee § 255, p. 391, ante. 394 CH. IX.] OPINIONS OF PUBLICISTS. §261 the treaty-making power. In the case of Ware vs. Ilylton'^ this question was discussed in an action submitted to, and decided by, the Supreme Court, and the provisions of the Constitution in regard to treaties were judicially construed and determined. § 260. Opinions of publicists— not judicial decisions — discussed in tliis cliapter. — The judicial decisions will be reserved for subsequent chapters,^ and the balance of this chapter will be devoted to referring briefly to the opinions of some of the ablest writers upon the Constitution, and giving a summary of their views in regard to the nature and extent of the treaty-making power as it is vested in the Central Government of the United States. It will only be possible to give extracts from a few of the many eminent writers upon constitutional law and treaties.^ §261. Views of William Rawle; 1825 One of the earliest expounders of the Constitution was William Rawle, whose book, published in 1825, was immediately recognized, and has ever since retained its position, as an able exposition of the subject, notwithstanding some of the extreme views of the autlior.^ Mr. Rawle was an ardent exponent of the States' rights school : in fact, he believed in the right of secession ; he gave, however, the widest possible scope to the treaty-making power. The following extract shows that he realized how fully the framers and ratifiers of the Constitution appreciated the nature and extent of this power when they vested it in the Central Government of the United States. '' The nature and extent of this constitutional power under- went full examination, in the state conventions. The most general terms are used in the Constitution. The powers of §259. iSee §324, Vol. II, pp. 6 at seq. §260. 1 Chaps. XI-XIV, pofit. 2 The student who desires to fur- ther investigate this subject will find two very complete bibliogra- phies of the subject. One, as the Appendix to the second volume of Curtis' Constitutional History of the United States, and the other in Paul Leicester Ford's collections of Pami)hlets on the Constitution. See also list of authorities referred to, at connnencanient of this volume. §261. ^ A view of the Constitution of the United States by William Rawle, 1st edition, Philadelphia, 1825, 2d edition, 1829. 395 § 261 TREATY->L\KING POAVER OF THE U. S. [CH. IX. congress in respect to making laws we shall iind are laid under several restrictions. There are none in respect to treaties. Although the acts of public ministers, less im- mediately delegated by the people than the house of rep- resentatives ; the president constitutionally and the senate, both constitutionally and practically, two removes from the people, are by the treaty making power, invested with the high and sole control over all those subjects which properly arise from intercourse with foreign nations, and may event- ually effect important interests at home. To define them in the Constitution would have been impossible, and there- fore a general term could alone be made use of, which is, however, to be scrupulously confined to its legitimate inter- pretation. Whatever is wanting in an authority expressed, must be sought for in principle, and to ascertain whether the execution of the treaty making power can be supported, we must carefully apply to it the principles of the Constitu- tion from which alone the power proceeds. " In its general sense, we can be at no loss to understand the meaning of the word treaty. It is a compact entered into with a foreign power, and it extends to all those mat- ters which are generall}^ the subjects of compact between independent nations. Such subjects are peace, alliance, com- merce, neutrality, and others of a similar nature. To make treaties is an essential attribute of a nation. One which dis- abled itself from the power of making, and the capacity of observing and enforcing them when made, would exclude it- self from the international equality which its own interests require it to preserve, and thus in many respects commit an injury on itself. In modern times and among civilized na- tions, we have no instances of such absurdity. The power must then reside somewhere. Under the articles of confed- eration it was given with some restrictions, proceeding from the nature of that imperfect compact, to congress, which then nominally exercised both the legislative and executive powers of general government. In our present Constitution no limi- tations v/ere held necessary. , The only question was where to deposit it. Now this must be either in congress generally, in the two houses exclusive of the president, in the president 396 CH. IX.] OPINIONS OF PUBLICISTS. § 262 conjunctly with them or one of them, or in the president alone. . . . " There is a variance in the words descriptive of laws and those of treaties — in the former it is said those which shall be made in pursuance of the Constitution, but treaties are described as having been made, or which shall be made un- der the authority of the United States. "The explanation is, that at the time of adopting the Con- stitution, certain treaties existed, which had been made by congress under the confederation, the continuing obligations of which it was proper to declare. The words ' under the authority of the United States,' were considered as extending equally to those previously made, and to those which should subsequently be effected. But although the former could not be considered as made pursuant to a Constitution which was not then in existence, the latter would not be unless they are conformable to its Constitution. . . . " Having felt the necessity of the treaty-making power, and having fixed on the department in which it shall be vested, the people of course excluded from all interference with it, those parts of the government which are not de- scribed as partaking of it. The representation held out by our Constitution to foreign powers, was, that the president with the advice and consent of the senate, could bind the nation in all legitimate compacts : but if pre-existent acts, contrary to the treaty, could only be removed by Congress, this representation would be fallacious ; it would be a just subject of reproach, and would destroy all future confidence in our public stipulations. The immediate operation of the treaty must therefore be to overrule all existing legislative acts inconsistent with its provisions." ^ § 262. Mr. Rawle's acquaintance with members of Con- stitutional Convention. — Mr. Rawle had the advantage of personal acquaintance with members of the Constitutional Convention, and with the Judges of the Supreme Court who had been called upon to construe it, and he was well able to write upon the subject, having full knowledge of the circum- stances under which the instrument itself was framed and ratified. In another part of his work, in which he discussed ^Idem, p. 67-61, 1st edition; pp. 64-67, 2d edition. 397 § 263 TREATY-MAKING POAYER OF THE U. S. [CH. IX. the effect of Article VI upon the State constitutions and legislation, he recognized the necessity of central action "without any reference whatever to the States ; in this re- spect he says : " The effect of a treaty on state constitutions and state laws cannot be questioned. Without considering whether it operates directly as a repeal of them, we are warranted in saying that an act done under a state law, in opposition to a treat}", cannot be set up as a legal bar to a proceeding founded on a treaty. " The inability of the Confederation to enforce the treaties made by them was severely felt. Many state laws which had been passed, during, or shortly after the war of the revolu- tion, were inconsistent with some of the articles of the treaty of peace with Great Britain, and that power, complaining of injuries sustained in consequence thereof, postponed the fulfillment of the treaty in some points on their part. The inadequacy of the powers of congress to enforce it were then sensibly felt, and a serious declaration that a treaty, in virtue of the confederation, was part of the law of the land and obligatory on the several legislatures, was transmitted to all the states, with an urgent recommendation that the states themselves would repeal all those acts and parts of acts that were repugnant to the treaty. In this respect the want of a judicial power was strongly perceived. " After the adoption of the Constitution, its retrospective effect upon the opposing laws of a state, passed even before the treaty, was speedil}" and fully established by the Supreme Court of the United States." ^ § 263. Views of William A. Diier ; 1833.— Another of the early commentators of the Constitution was William A. Duer who as early as 1833, published his first text book on the Constitution,^ which was afterwards followed by his Consti- tutional Jurisprudence^ in which he declared that " thejpowers §262. 1 A view of the Constitution of the United States, by William Rawle, Philadephia, 1825 and 1829, 1st edi- tion p. 68; 2d edition, p. 74. §263. 1 Outlines of the Constitutional Jurisprudence of the United States, 398 by William Alexander Duer, LL. D, New York, 1833. 2 A course of Lectures on the Constitutional Jurisprudence of the United States by William Alexander Duer, 2d edition, Bos- ton, 1856. CH. IX.] OPINIONS OF PUBLICISTS. § 263 to maJce treaties^ and to send and receive amhassadors and other piibliG ininlsters and consuls, are essential attributes of national sovereignty, and of that international equality which the interests of every sovereignty require it to pre- serve." ^ The opening pages of his seventh Lecture, which are quoted at length in the notes show how thoroughly he had examined this point and how consistent it is with the nationality and sovereignty of the United States.^ 3 Idem, p. 227. * Lecture VIII, p. 227, idem, con- tinues : "The powers vested in the Gen- eral Government for regulating foreign intercourse, consist, "First. Of tlie povs^ers to make treaties, and to send and receive Ambassadors, and other public Ministers, and Consuls. " Secondly. Of the power to de- fine and punish piracies and felo- nies committed on the high seas, and other offences against the law of nations; and, " Thirdly, Of the power of regu- lating foreign commerce; includ- ing a power to prohibit, after a certain period, now elapsed, the importation of slaves. "This class of powers forms an obvious and essential branch of Federal administration; for if the United States are one nation in any respect, they are most clearly so in respect to other nations. "1. The powers to make treaties, and to send and receive Ambassa- dors and other public Ministers, and Consuls, are essential attributes of national sovereignty, and of that international equality which the interests of every sovereignty re- quire it to preserve. Both powers were possessed by Congress under the Confederation, but not to the extent to which they are now en- joyed; for then the former power was embarrassed by an exception, under wliich ti-eaties might be sub- stantially frustrated by regulations of the States, and the latter did not comprehend ' other public ministers and consuls.' "As treaties with France and Holland, and especially the treaty of peace with Great Britain, ex- isted when the Constitution was adopted, it became necessary to vary its terms in regard to treaties, from those relative to the laws of the United States; the declaration it contains in respect to the suprem- acy of the latter operating only in future, while in reference to tlie former the terms are, ' All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.' These terms were intended to apply equally to previously ex- isting treaties, as well as to those made subsequently to the Constitu- tion; and it has, accordingly, been adjudged, by the Supreme Court, that they effectually repeal so much of the State laws and Con- stitutions as are repugnant to them. " More general and extensive terms, also, are used in vesting the power with respect to treaties, than in conferring that relative to laws; and, while the latter is laid 399 § 264 TREATY-JLA.KING POWER OF THE U. S. [CH. IX. § 2(54. George Tickiior Curtis' Constitutional History of the United States. — The Constitutional History of the Uni- under several restrictions, there are noue imposed on the exercise of the former, notwithstanding it is committed to the President and Senate, in exclusion of the House of Representatives, and is executed through the instrumen- tality of agents delegated for the purpose. And although the Presi- dent and Senate are thus invested VFith this high and exclusive con- trol over all those subjects of nego- tiation with foreign powers, which, in their consequences, may affect important domestic interests, yet it would have been impossible to have defined a power of this nature, and, therefore, general terms only were used. These general expres- sions, however, ought strictly to be confined to their legitimate signifi- cation; and in order to ascertain whether the execution of the treaty- making power can be supported in any given case, those principles of the Constitution, from which the power proceeds, should carefully be applied to it. The power must, indeed, be construed in subordina- tion to the Constitution; and how- ever, in its operation, it may qualify, it cannot supersede or in- terfere with, any other of its funda-, mental provisions, nor can it ever be so interpreted as to destroy other powers granted by that in.strument. A treaty to change the organization of the Govern- ment, or annihilate its sovereignty, or overturn its Republican form, or to deprive it of any of its con- stitutional powers, would be void; because it would defeat the will of the people, which it was designed to fulfill. *' A treaty, in its general sense, 400 is a compact entered into with a foreign power, and extends to all matters which are usually the sub- ject of compact between independ- ent nations. It is, in its nature, a contract, and not a Legislative act; and does not, according to general usage, effect of itself the objects intended to be accomplished by it, but requires to be carried into exe- cution by some subsequent act of sovereign power by the contracting parties, especially in cases where it is meant to operate within the ter- ritories of either of them. With us, however, a different principle is established, in certain cases. It has been settled by the Supreme Court, that, inasmuch as the Con- stitution declares a treaty to be the law of the land, it is to be regarded in Courts of Justice as equivalent to an act of Legislature, whenever it operates of itself without requir- ing the aid of any legislative pro- vision. But when the terms of any treaty stipulation import an execu- tory contract, it addresses itself to the political, and not to the Judicial department for execution, and Con- gress must pass a law in execution of the compact, before it becomes a rule for the Courts. The Consti- tution does not expresslj' declare whether treaties are to be held su- perior to the Acts of Congress, or whether the laws are to be deemed coequal with, or superior to trea- ties ; but the representation it holds forth to foreign powers, is that the President, by and with the advice and consent of the Senate, may bind the nation in all legitimate contracts; and if pre-existing laws, contrary to a treaty, could only be abrogated by Congress, this repre- CH. IX.] OPINIONS OF PUBLICISTS. §264 ted States by George Ticknor Curtis will perpetuate the name of that author as long as the Constitution shall remain the sentation would be fallacious. It would subject the public faith to just imputation and reproach, and destroy all confidence in the na- tional engagements. The immedi- ate operation of a treaty must, therefore, be to overrule all exist- ing laws incompatible with its stipulations. "Nor is this inconsistent witli the power of Congress to pass sub- sequent laws, qualifying, altering or wholly annulling, a treaty; for such an authority, in certain cases, is supported on grounds wholly in- dependent of the treaty-making power. For, as Congress possesses the sole right of declaring war, and as the alteration or abrogation of a treaty tends to produce it, the power in question may be regarded as an incident to that of declaring war. The exercise of such a right may be rendered necessary to the public welfare and safety, by meas- ures of the party with whom the treaty was made, contrary to its spirit, or in open violation of its letter; and on such grounds alone can this right be reconciled either with the provisions of the Consti- tution, or the principles of public law. A memorable instance has occurred in our history of the an- nulment of a treaty by the act of the injured party. In the year 1798, Congress declared that the treaties with France were no longer obligatory on the United States, as they had been repeatedly violated by the French Government, and our just claims for reparation disre- garded. Nevertheless, all treaties, as soon ns ratified by competent au- thority, become of absolute efficacy, and, as long as they continue in 26 force, are binding upon the whole nation. If a treaty require the pay- ment of money to carry it into ef- fect, and the money can only be raised or appropriated by an Act of the Legislature, it is morally ob- ligatory upon the legislative power to pass the requisite law; and its refusal to do so would amount to a breach of the public faith, and af- ford just cause of war. That de- partment of the Government which is intrusted with the power of mak- ing treaties may bind the national faith at its discretion; for the trea- ty-making power must be coexten- sive witli the national exigencies, and necessarily involves in it every branch of the national sovereignty, of which the operation may be necessary to give effect to negotia- tions and compacts with foreign nations. If a nation have con- ferred on its Executive department, without reserve the right of treat- ing and contracting with other sovereignties, it is considered as having invested it with all the power necessary to make a valid contract, because that department is the organ of the Government for the purpose, and its contracts are made by the deputed will of the nation. The fundamental laws of the State may withhold from it the power of alienating the public do- main, or other property belonging to it; but if there be no express provision of thatkind, the inference is that it has confided to the depart- ment, charged with the duty and the power of making treaties, a discretion commensurate with all the great interests of the nation. (Citing Vattel's Law of Nations, b. 1, ch. 21, sec. 2; 3 Dall. 199; 401 § 264 TKEATY-MAKING POWER OF THE U. S. [CH. IX. foundation of our Government, lie states the reason for the adoption of Article VI, in clear and concise terms as follows : Grotius' Law of War and Peace, b. 3, ch. 20, sec. 7; ibid. b. 4, ch. 2, sees. 11, 12; 1 Cranch, 103.) " The concurrence of each branch of the Legislative power, we have seen, is necessary to a declaration of war, while the President with the advice and consent of the Sen- ate alone, may conclude a treaty of peace. Xow a power to make treaties necessarily implies a power to settle the terms on which they shall be concluded; and foreign States could not deal safely with the Government on any other pre- sumption. That branch of the Government which is intrusted thus largely and generally with authority to make valid treaties of peace, can, of course, bind the na- tion by the alienatien of part of its territory; and tliis, acoordin"' to an approved writer on the law of nations, (Grotius, b. 4, ch. 2, sees. 11, 12) is equally the case, whether that territory be already in the occupation of the enemy, or re- main in possession of the nation, or whether the property be public or private. In a case decided in the Supreme Court of the United States, it was admitted that indi- vidual rights acquired by war, and vested rights of the citizen, might be sacrificed by treaty for national purpo.ses. (1 Cranch, 103.) "And in another case, it was held to be a clear principle of na- tional law, that private rights might be surrendered by treaty to secure the public safety, but the Government would be bound to make compensation and indemnity to the individual whose rights had thus been sacrificed. "The conclusion of a treaty of 402 commerce and navigation with Great Britain, in 1704, gave rise to much public discussion as to the nature and extent of the treaty- making power. A resolution was passed by the House of Represen- tatives, requiring the President to lay before them a copy of his in- structions to the Minister who con- ducted the negotiation, with the correspondence and other docu- ments, relative to the treaty, excepting such papers as any ex- isting negotiations might render it improper to disclose." Mr. Duer then quotes largely from the reply of President Wash- ington to this resolution which is quoted in full as a note to § 292 post of this volume, and in Avhich he refused to comply with the re- quest. " The principles thus laid down by General Washington, were so far acquiesced in by the House, that they passed a resolution, dis- claiming the power to interfere in making treaties; but asserting the right of the House of Representa- tives, whenever stipulations are made on subjects committed by the Constitution to Congress, to deliberate on the expediency of carrying them into effect; and sub- sequently it was declared, by a small majority, to be expedient to pass the laws necessary for carry- ing the treaty into effect. From that time the question remained undisturbed until the conclusion of a convention with Great Britain, in 1S15, when the House of Repre- sentatives, after much debate, passed a bill specifically enacting, on a particular subject, the same provisions which were contained CH. IX.] OPINIONS OF PUBLICISTS. §264 " The articles specially designed to assert and carry out the supremacy of the JSTational Government, as they came from the Committee, embodied the resolutions on the same subject which had passed the Convention. The only mate- rial addition consisted in the qualification that the legislative acts of the United States, which were to be the supreme law, were such as should be made in pursuance of the Constitu- tion. Subsequently the article was so amended as to make the Constitution, the laws passed in pursuance of it, and the treaties of the United States the supreme law of the land, binding upon all judicial officers. " It is a remarkable circumstance that this provision was originally proposed by a very earnest advocate of the rights of the States— Luther Martin. His design, however, w^as to supply a substitute for a power over State legislation, which had been embraced in the Virginia plan, and which was to be exercised through a negative by the national legislature upon all laws of the States contravening, in their opinion, the Articles of Union or the treaties subsisting under the authority of the Union. The purpose of the substitute was to change a legislative into a judicial power, by transferring from the national legislature to the judiciary the right of determining whether a state law supposed to be in conflict with the Constitution, laws, or treaties of the Union should be inoperativ^e or valid. By extending the obligation to re- gard the requirements of the national Constitution and laws to the judges of the state tribunals, their supremacy in all the judicatures of the country was secured. This obligation as stipulations in the treaty. This dangerous innovation on the treaty- making power was warmly opposed by a minority in the House, and disagreed to by the Senate; but, after several conferences between them, the affair terminated in a compromise which it is difficult to reconcile with a sound construc- tion of the Constitution. The law passed on the occasion brietly de- clares that so much of any Act as imposes a duty on tonnage, con- trary to the provisions of the con- vention with Great Britain, should, from the date of that instrument, and during its continuance, be of no force or effect; thus setting a precedent which may produce fu- ture difficulty in our national legis- lation, though tlie Judicial tribu- nals would probiibly regard such a law as a work of supererogaticm, or a mere nullity, and, from its retroactive operation, at variance with the spirit of the Constitu- tion." (For citation see head of this note.) 403 §265 TREATY-MAKING POWER OF THE U. S. [CH. IX. Avas enforced by the oath or aiiirination to support the Con- stitution of the United States ; and, as we shall see hereafter, lest this security should fail, the final determination of ques- tions of this kind was drawn to the national judiciary, even when they might have originated in a state tribunal."' § 205. Joseph Story* the coiumeutator of the Coustitu- tioii. — Joseph Story was but nine years of age when the Constitution was finally ratified, but he ha^ the double ad- vantage of acquaintance with many of those who had par- ticipated in framing it, and of being called upon to construe it as one of the Justices of the Supreme Court of the Uni- ted States at the veiy early age of thirty-two, being the youngest man who ever sat ujwn that bench.' While the palm for Constitutional exposition must neces- sarily be given to the great Chief Justice, the centennial of whose appointment^ has this year been celebrated through- out the United States in a manner appropriate to the occa- sion, and to the memory of one of the greatest jurists and most distinguished statesmen of this, or any other countr}'^, we must not overlook the debt of gratitude we owe to Joseph Story, for many years Marshall's associate upon the Supreme Court of the United States, and who not only displayed great ability in his opinions, on constitutional and other ques- §264. 1 Constitutional History of the United States from the Declara- tion of Independence to the close of the Civil War, by George Ticknor Curtis, in two volumes, 2d edition, New York, 1889, p. 554. § 265. 'Joseph Story, born Sept. IS, 1779, appointed Associate Justice of the Supreme Court 1811, by Pres- ident Madison, died Sept. 10, 1845. His decisions extend through thirty-five volumes of the Reports of the Supreme Court; many of them relate to constitutional con- struction, and several of them to the question under discussion. 2 John Marshall of Virginia was born September 24, 1755, he was 404 appointed Chief Justice of the United States by President John Adams early in 1801. He assumed his place as Chief Justice on Feb- ruary 4, 1801, and occupied that po- sition until his death, July 6, 1835. On February 4, 1901, centennial an- niversary exercises were held under the auspices of the American Bar Association in Washington, D. C. ; the New Y'ork State and New York City Bar associations jointly in Albany, N. Y., and under various local associations in many other cities of the United States, Chief Justice Fuller, Associate Justice Gray, John M. Dillon, Wayne Mc- Veagh, Wra. Wirt Howe, W. Bourke Cochran and others deliv- ering addresses at various places. CH. IX.] OPINIONS OP PUBLICISTS. § 266 tions of law, but who, on some occasions, forced the entire Court into uniting with him in expounding the limitations upon, and at the same time expanding the powers of, the Federal Government, § 266. Story's views on Article VI of the Constitution. — His " Commentaries " on the Constitution published in 1833, at once became, as they have ever since remained, a standard authority on the construction of the Constitution from legal and historical standpoints. In speaking of Arti- cle VI, ho says: ^ "The propriety of this clause Avould seem to result from the very nature of the Constitution. If it was to establish a national government that government ought, to the extent of its powers and rights, to be supreme. It would be a perfect solecism to affirm that a national gov- ernment should exist with certain powers, and 3^et that in the exercise of those powers it should not be supreme. . . . In regard to treaties, there is equal reason why they should be held, when made, to be the supreme law of the land. It is to be considered that treaties constitute solemn compacts of binding obligation among nations; and unless they are scrupulously obeyed and enforced, no foreign nation would consent to negotiate with us ; or if it did, any want of strict fidelity on our part in the discharge of treaty obligations would be visited by reprisals or war.^ It is, therefore, indis- pensable that they should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws. This will not prevent them from being canceled or abrogated by the nation upon grave and suitable occasions; for it will not be disputed that they are subject to the legislative power, and may be repealed, like other laws, at its pleasure, or they may be varied by new treaties.^ Still, while they do subsist they ought to have a positive binding efficacy as laws upon all the States and all § 266. 1 Commentaries on tlio Constitu- tion of the United States, with a Preliminary Review of the Consti- tutional History of the Colonies and States befoi-e the adoption of the Constitution, by Joseph Story, LL. D., in two volumes, 5th edition, by Melville M. Bigelow, Ph. D., Boston, 1891, vol. II, § 1837- 1840, pp. 603-607. 2 Citing the Federalist, No. 64. (See §§ 244-245, pp. 381 et neq. ante.) 8 See numerous cases cited in notes on p. 605, 2 Story's Com. 405 § 266 TREATY-MAKING POWER OF THE U. S. [CH, IX. the citizens of the States. The peace of the nation, and its good faith, and moral dignit\^ indispensably require that all State laws should be subjected to their supremacy. . . It is notorious that treaty stipulations (especially those of the treaty of peace of 1783) were grossly disregarded by the States under the confederation. They were deemed by the States not as laws, but like requisitions of mere moral obli- gation and dependent upon the good-will of the States for their execution. Congress, indeed, remonstrated upon this construction as unfounded iti principle and justice. But their voice was not heard. " Power and right were separated ; the argument was all on one side, but the power was on the other. It was jprohahly to obviate this very difficulty^ that this clause was inserted in the Constitution ; and it would redound to the immortal honor of its authors if it had done no more than to bring treaties within the sanctuar}^ of Justice as laws of supreme obligation. . . . It is melancholy to reflect that conclu- sive as this view of the subject is in favor of the supremacy clause, it was assailed with great vehemence and zeal by the adversaries of the Constitution. . . . The very circum- stance that an objection was made demonstrated the utility, nay, the necessity of the clause, since it removed every pre- tence under which ingenuit}' could, by its miserable subter- fuges, escape from the controlling power of the Constitution. " To be fully sensible of the value of the whole clause, we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor. . . . The new Congress would have been reduced to the same impotent condition with their predeces- sors. ... As the Constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would in- terfere with some and not with other constitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others." ^ *Tlie italics are the authors. 6 Justice Story follows this with a discussion of the question as to how far the treaty-making power 406 embraces commercial regulations; this subject will be referred to in the next chapter. CH. IX.] OPINIONS OF PUBLICISTS. § 267 § 267. Judge Cooley's " Constitutional Limitations ; " 1873. — Forty years after Justice Story's Commentaries had appeared, Mr. Justice Cooley of Michigan issued the first edi- tion of his " Treatise on Constitutional Limitations," which has since then run through numerous editions, and holds high rank as an authority, especially as to the constitutional limi- tations resting upon the legislative powers reserved to the States. He, also, recognized the absolute necessity of era- powering the Central Government of the United States to make treaties in such manner that there could be no collision between State and National authorities, as w^ould certainly be the result if the adjustment of international matters were regulated by legislation in over forty-five different States. Nothing more hopeless can be imagined than the prospect of uniformity in such cases ; he gives to treaties the highest authority allowed by almost any writer on the subject, either in text-books, or in decisions, and in the following paragraph, after quoting Article VI, at length, he shows how essential this power is to the protection of the National jurisdiction : " It is essential to the protection of the national jurisdic- tion, and to prevent collision between State and national authority, that the final decision upon all questions arising in reo^ard thereto should rest with the courts of the Union ; and as such questions must frequently arise first in the State courts, provision is made by the Judiciary Act for removing to the Supreme Court of the United States the final judg- ment or decree in any suit, rendered in the highest court of law or equity of a State in which a decision could be had, in which is drawn in question the validity of a treaty, or stat- ute of, or authority exercised under the United States, and the decision is against its validity ; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity ; or where any title, right, privilege, or immunity is claimed under the Constitu- tion or any treaty or statute of or commission held or author- ity exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set 407 §208 TREATY-MAKING POWER OF THE U. S. [CH. IX. up or claimed by either part}'^ under such Constitution, treaty, statute, commission or authority." ^ In his " General Principles of Constitutional Law," in Avhich he also discusses the same subject, he says : "A State law must yield to the supreme law, whether ex- pressed in the Constitution of the United States or in any of its laws or treaties, so far as they come in collision, and whether it be a law in existence when the 'supreme law' was adopted, or enacted afterwards. The same is true of any provision in the constitution of any State which is found to be repugnant to the Constitution of the Union. And not only must the judges in every State, be bound by such supreme law, but so must the State itself, and every official in all its departments, and every citizen." ^ § 268. Professor Pomeroy's Views. — Another recent writer on the Constitution whose books have great weight in regard to its construction is Professor John Norton Pome- roy, whose " Introduction to the Constitutional Law of the United States " has already reached its ninth edition. He has, perhaps, more than any other writer, examined the sub- ject of the treaty-making power, and his opinion, amply sus- tained by citations and extracts from other authorities, is un- equivocally expressed as follows : " Of the unlimited extent and transcendent importance of this (treat3''-making) function thus confided to the Executive, either alone or in connection with the Senate, there can be no doubt.^ . . . The Constitution places no express lim- its whatever upon the subjects, conditions, or contents of treaties. The President shall have power to make treaties. Now, the subjects to which these international compacts §267. 1 A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union, by Thomas M. Cooley, LL. D., 6th edition, ed- ited by Alexis C. Angell, Boston, 1890, pp. 18-19. 2 The General Principles of Con- stitutional Law in the United States of America, by Thomas M. Cooley, LL.D., 3d edition, by An- 408 drew C. McLaughlin, A.M., LL.B., Boston, 1898, pp. 32-33. And see numerous authorities cited in notes thereto. §2G8. 1 An Introduction to the Consti- tutional Law of the L'nited States, by John Norton Pomeroy, 9th edi- tion, revised and enlarged by Ed- mund H. Bennett, Boston and New York, 1886, § 670, p. 563. CH. IX.] OPINIONS OF PUBLICISTS. § 269 may legitimately refer, are innumerable; the stipulations they may legitimately contain, are equally various, depend- ent on numberless changes of circumstances and relations. They may affect most vitally the interest of the nation as a whole, or the private and personal interests of individuals. . . . The genus, treaties, includes all the usual kinds and sorts." ^ He expresses, however, an opinion that there are some implied limitations, as for instance the deprivation of Con- gress or the Judiciary, or the President, of any general pow- ers which are granted by the Constitution, or any general change in the form of government of this country, but, with this exception, he does not consider that there are any limitations, and draws particular attention to the fact that all "treaties made by the authority of the United States are, equally with the Constitution and the laws of Congress passed under it, the supreme law of the land, and are binding upon, and superior to, state authority, whether that be expressed in state constitutions or state laws." ^ § 269. Professor Pomeroy's broad views in regard to the Executive and foreign relations. — The most pertinent part of his conclusions upon this subject are found in the following remarks, " upon the scope and extent of this exec- utive function of regulating foreign relations, and its influ- ence and effect upon the general powers of the national government." Continuing he says : " There is here, as I be- lieve, a mine of power which has been almost unworked, a mine rich in beneficent and most efficacious results. The President may, and must, manage the foreign relations ; he may, in the manner prescribed, enter into treaties. . . . Where the act is legislative in its nature, the Congress may legislate ; where the act is executive in its nature, the Presi- dent may execute. . . . But Congress may, in aid of this function of the President, pass laws which are addressed directly to the separate states, and which control the acts of their governments. The states have no international status ; but they may, through their governments, do such acts as endanger the foreign relations of the nations ; for these acts ^Idem, § 674, p. 566. » Uem, § 675, p. 567. 409 § -270 TREATY-MAKING POWER OF THE U. S. [CH. IX. the Government is responsible to the foreign power, antl cannot evade the responsibihty by asserting its want of con- trol over the state. As the responsibility rests upon it, the power must belong to it. . . . I am of opinion that the general government, under its function of controlling international relations, has the power by proper legislation, to prevent a state from repudiating its public debt, so far as that debt may be hold by foreign citizens. I repeat, that in this Executive attribute, and in the capacity of Congress to pass laws in aid thereof, there is a source of power which has, as yet, been little resorted to, which has even been little thought of, but which is fruitful in most important and salu- tary results. "When we reflect upon the great variety of treaties which may be made, and the compulsive character which the Constitution stamps upon them, the power of the gen- eral government, through their means to control state legis- lation is even more plainly apparent.'" * § 270. Professor Poineroy on State statutes and treaty stipulations. — Referring to the provisions in one of the treaties with France, in which the United States agreed to urge the various States to make laws permitting aliens to acquire real estate, which provisions he considers use- less, he says : " If the treaty had expressly declared that French subjects may have full powers and rights to acquire and hold lands in any part of the United States, such com- pact would have overridden, in favor of Frenchmen, any state law forbidding aliens to acquire and hold real prop- erty. And such compact would have executed itself; it would have become part of the supreme law of the land ; it would have required no congressional sanction ; state courts would have been bound to give it force. In fact, the treaty of 1794, between Great Britain and the United States, contained a provision identical in principle with the one sup- posed ; for the citizens of each country were allowed to hold and inherit lands held by them or their ancestors in the other country prior to the Revolution. It is, therefore, pos- sible at the present day for a British subject to inherit lands § 269. I stitutional Law, §§ 679, 681, pp. 569 1 Pomeroy's Introduction to Con- ' -571. 410 CH. IX.] OPINIONS OF PUBLICISTS. § 272 in the United States, notwithstanding the laws of the par- ticular state in wliich they are situated may deny to an alien this capacity. The validity of the stipuUition has been re- peatedly recognized and affirmed by the national and state courts, and many existing titles are based upon it." ^ § 271. Tiews of Story? Iredell and Pomeroy identical as to State statutes and treaty stii)ulations. — Thus we have the evidence of Story,^ IredelP and Pomeroy, three eminent authorities on constitutional law, that the very object of Article VI was to do away forever with the policy of urg- ing legislation upon the States, which had been adopted with such mortifying results by the framers of the Treaty of 1783, and that it was undoubtedly the intention of the framers of the Constitution to obviate such difficulties, and for that purpose the clause making treaties binding upon the States and superior to their laws and constitutions was incorporated in the instrument.^ § 272. Chancellor Kent's opinion. — To any question, re- garding the fundamental law of this country answer can al- most always, if not always, be found in the Commentaries of Chancellor Kent; his views on the treaty-making power of the United States leave little room for doubt either as to the existence of that power, or as to its extent. In Lect. XIII he says : " The President has also the power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. "Writers on government have differed in opinion as to the nature of this power, and whether it be properly, in the nat- ural distribution of power, of legislative or executive cog- nizance. As treaties are declared by the Constitution to be a part of the supreme law of the land, and as by means of them ncAV relations are formed and obliirations contracted, it might seem to be more consonant to the principles of re- publican government to consider the right of concluding specific terms of peace as of legislative jurisdiction. This has generally been the case in free governments. The de- §270. 1 Pomeroy's Introduction to Constitutional Law, § 681, pp. 571- 572. §271. iSee §266, p. 405, cm^e. 2 See § 253, p. 389, ante. 3 See also § 277, p. 415, post. 411 § 272 TREATY-IIAKING POWER OF THE U. S. [CH. IX. terminations respecting peace, as well as war, were made in the pnblic assemblies of the nation at Athens and Rome, and in all the Gothic governments of Europe, when they tirst arose out of the rude institutions of the ancient Ger- mans. On the other hand, the preliminary negotiations which may be required, the secrecy and despatch proper to take advantage of the sudden and favorable turn of public affairs, seem to render it expedient to place this power in the hands of the executive department. The Constitution of the United States has been influenced by the latter more than by the former considerations, for it has placed this power with the President, under the advice and control of the Senate, who are to be considered, for this purpose, in the light of an executive council. The President is the con- stitutional organ of communication with foreign powers, and the efficient agent in the conclusion of treaties ; but the con- sent of two thirds of the senators present is essential to give validity to his negotiations. To have required the acquies- cence of a more numerous body would have been productive of delay, disorder, imbecility, and probably, in the end, a direct breach of the Constitution. The history of Holland shows the danger and folly of placing too much limitation on the exercise of the treaty -making power. By the funda- mental charter of the United Provinces peace could not be made without the unanimous consent of the provinces ; and yet, without multiplying instances, it is sufficient to observe, that the immensely important and fundamental treaty of Munster, in 164:8, was made when Zealand was op]iosed to it: and the peace of 1661, when Utrecht was opposed. So feeble are mere limitations upon paper, — mere parchment barriers, when standing in opposition to the strong force of public exigency."^ In referring to Chancellor Kent's views in regard to the extent of the treaty-making power of the United States, Professor Woolsey in his " International Law " says: " An interesting inquiry here arises, whether the treaty- §272. 1 Commentaries on American Law, by James Kent, vol. I, 12tli edition edited by O. W. Holmes, Jr. 412 and 14th edition edited by John M. Gould, Boston, 1896, p. 34t) (*284) and see also the notes to that page. CH. IX.] OPINIONS OF PUBLICISTS. § 275 making power in a federative union, like the United States, can alienate the domain of one of the States without its con- sent. Our government, when the northeastern boundary- was in dispute, declared that it had no power to dispose of territory claimed by the State of Maine. 'The better opin- ion would seem to be,' says Chancellor Kent, ' that such a power of cession does reside exclusively in the treaty-mak- ing power under the Constitution of the United States, al- though a sound discretion would forbid the exercise of it without the consent, of the interested State." ^ § 273. Numerous other opinions in support of broadest powers. — These quotations could be multiplied until reitera- tions of principle became wearisome, and extracts could be added from many other eminent writers who have contrib- uted the results of their thought and experience to constitu- tional literature, including Mr, Calhoun,^ who imposes more Kmitations on the Federal Government than almost any other writer on the subject, but who acknowledges the wide scope of the treaty-making power, although he also imposes some limitations upon it. It would, however, simply be in the nature of cumulative evidence, to add additional excerpts, and therefore no further quotations will be made ; but the reader is referred to the opinions of the judges of our high- est Courts, both Federal and State, which are collated in the subsequent chapters. § 274. NarroAYer views of some authorities on the Con- stitution. — iVU of the expounders of the Constitution, how- ever, do not take such broad views of the extent and scope of the treaty-making power as it has been vested in the Cen- tral Government by the provisions of the Constitution, and while the author does not agree with them, as must be ap- parent to any reader of this volume, he desires to present the views of both schools of Constitutional construction. § 275. John Randolph Tuclter's views. — Some of them contend that the tr-eaty-making power is limited in many ways and probably John Randolph Tucker is the best repre- sentative of the school which would enforce limitations upon ^Woolsey's International Law, § 103, p. 160, in regard to this sub- ject; see also § 426, Vol. II. §273. 1 See §276, 2'>ost, and §§ 482, and 483, Vol. II. 413 § 275 TREATY-MAKING POWER OF THE U. S. [CH. IX. this power. His views as expressed in his work on the Con- stitution are very largely a condensation of his views ex- pressed in a repoi't from the Coniniittee of Judiciary in 1887 in regard to tlje recipi'ocity treaty Avith the Hawaiian Islands to which reference will be made in a subsequent chapter.^ Mr. Tucker's views as to limitations, however, are here quoted at length in regard to the effect of treaties upon the essential liberties of the people. In that respect he says : " A ti'eaty, therefore, cannot take away essential liberties secured by the Constitution to the people. A treaty cannot bind the United States to do what their Constitution for- bids them to do. "VVe may suggest a further limitation : a treaty cannot compel any department of the government to do what the Constitution submits to its exclusive and absolute will. On these questions the true canon of construc- tion, that the treatj^-making power, in its seeming absolute- ness and unconditional extent, is confronted with equally absolute and unconditional authority vested in the judiciary. Therefore, neither must be construed as absolute and uncon- ditioned, but each must be construed and conditioned upon the equally clear power vested in the others. For example. Congress has power to lay and collect duties ; the President and Senate have power to make and contract with a foreign nation in respect to such duties. Can any other construc- tion be given to these two apparently contradictory powers than that the general power to make treaties must yield to the specific power of Congress to lay and collect all duties; and while the treaty may propose a contract as to duties on articles coming from a foreign nation, such an executory contract cannot be valid and binding unless Congress, Avhich has supreme authority to lay and collect duties, consents to it. If it is then asked, how are you to reconcile these two powers which appear to be antagonistic, the answer is clear. Congress has no capacity to negotiate a treatv with a foreign power. The extent of its membership makes this impracti- cable. The Constitution, therefore, left the House of Kep- resentatives out of all consideration in negotiating treaties. The executory contract between the United States and a for- § 275. I pressions of ISIr. Tucker's views, 1 See § 307, post. For other ex- 1 see § 10, ante and § 480, Vol. II. 414 CH. IX.] OPINIONS OF PUBLICISTS. § 277 eisfu nation is therefore confided to the one man who can con- duct the negotiations, and to a select body who can advise and consent to the treaty he has negotiated. But this execu- tory contract must depend for its execution upon the supreme power vested in Congress ' to lay and collect duties.' It is therefore a contract not completed, but inchoate, and can only be completed and binding when Congress shall by leg- islation consent thereto, and lay duties in accordance with the executory contract or treaty. The same reasoning may apply to all of the great powers vested in Congress, such as to 'borrow money, regulate commerce, coin money, raise armies and provide a navy, make laws as to naturalization, bankruptcies, and exercise exclusive legislation ' in the Dis- trict of Columbia and territories of the country. If these are sought by treaty to be regulated by the President and Senate, it can only be done when the Congress vested with these great powers shall give its unconditional consent." ^ § 276. John C. Calhoun's views. — The views of Mr. Cal- houn are so fully stated in a later section of this book in regard to limitations of the treaty-making power, that they will not be referred to at length at this point. In some respects, however, he is inconsistent with his general theories as to lack of all nationality in the Central Government, as he admits the necessity of placing the treaty-making power exclusively in its hands.^ § 277. Improper use of treaty stipulations as to urging State legislation. — In view of the great preponderance of the weight of authority on the side of the broad construc- tion of the powers of the Central Government, it is strange, that notwithstanding the opinions of the eminent jurists and commentators whose views have been given above, Commis- sioners who have been intrusted with the high and honorable duty of concluding treaties between the United States and foreign powers, have, on more than one occasion, reverted to. - The Constitution of the United States. A Critical Discussion of its Genesis, Development and Inter- pretation by John Randolpli Tuck- er; edited by Henry St. George Tucker. In two volumes, Chicago, 1899, vol. II, §§ .SSa-SuG. For quota- tion see pp. 725-726. §276. 1 See §§ 482-483, chap. XV, Vol. II. 415 §278 TREATY-MAKING POWER OF THE U. S. [CH. IX. and used, the antiquated system of 1TS3, and have agreed to " urge legislation upon the various States," ^ to carry out treaty stipulations, instead of making the stipulations abso- lutely, as the United States has the right to do, as well as to enforce them when made, and in regard to which the States have no power or voice whatever. It remains to be seen whether that policy will be continued, or whether, resting on its complete nationality, as well as upon its delegated power under the Constitution, the Central Government of the United States shall finally and forever relegate that pol- icy to the past, where it belongs, and shall exercise those powers which necessarily and properly belong to it, and which cannot be called in question by any foreign State with which it contracts, or be disputed by any of the States for whom the Central Government is the only medium of communica- tion with foreign powers, with full power in this respect, to bind them, jointly and separately, federally and nationally. § 278. This chapter confined to extent of treaty-making power. — The opinions quoted in this chapter refer only to the extent of the treatj'^-making power, and not in any way to the construction of treaties, the relative effect of treaties and legislation, or the right of the House of Eepresentatives to participate in the treaty-making power. Some opinions which have been expressed in those respects will be referred to, and to some extent quoted from, in subsequent chapters which will be devoted to the consideration of those branches of the subject-matter. §277. iSee Article XXVII, Treaty of 1871 (Washington) with Great Bri- tain, in which this Government "engages to urge upon the State Governments to secure to the sub- jects of Her Britannic Majesty tlie use of the several State canals con- nected with the navigation of the lakes or rivers traversed by or con- tiguous to the boundary line be- tween the possessions of the high contracting parties, on terras of equality with the inhabitants of the United States." U. S. Treaties, 416 edition, 1889, p. 489; Compilation of Treaties in Force, edition, 1899, p. 253. "Urging" compliance upon the States apparently con- sisted of the Secretary of State writing to the respective Governors of New York, Indiana, Illinois, Michigan, Ohio, Pennsylvania and Wisconsin an identic letter advising them of the treaty, inclosing a copy, with special reference to Arti- cle XXVII, and requesting compli- ance therewith. See Foreign Rela- tions of U. S. for 1871, p. 531. CHAPTER X. THE TREATY-MAKING POWER AND THE RELATIONS OF BOTH HOUSES OF CONGRESS THERETO, AS THE SAME HAS BEEN THE SUBJECT OF CONGRESSIONAL DEBATE AND ACTION. Section 279. — First Congress under Con- stitutiou meets; earliest tariff statutes. 280 — Power of United States to protect manufactures dis- cussed. 281 — Department of Foreign Af- fairs established; State de- partment. 282 — No treaties negotiated until 1794. 283 — Jay's treaty; excitement and opposition. 284 — Strained relations between United States and Great Britain ; Washington's mes- sage. 285 — Rights of the people, neces- sity of legislation to en- force the treaty. 286 — General discussion of these questions. 287 — John Jay's mission to Eng- land; negotiation of treaty. 288 — Ratification of treaty with amendment. 289 — Popular excitement; French and English parties. 290 — Meeting of Congress; Mes- sage of the President. 291 — Request of House of Repre- sentatives for papers relat- ing to treaty. 292 — President Washington's re- ply to the House. 293— Effect of Washington's re- ply; action by the House. 2T Section 294 — Other treaties ratified by the Senate and before the House. 295 — Fisher Ames's address and argument; treaty legisla- tion enacted. 296 — Position of House of Repre- sentatives in treaty mat- ters defined. 297 — Practical results of this method. 298 — Good faith in this respect always shown by Congress. 299 — Subsequent debates iii Con- gress on same subject. 300 — After commercial treaty of 1815 with Great Britain. .301 — Views of Mr. King of Massa- chusetts. 302 — Presentation of other side by Mr. Hardin. 303 — Result of conference; ex- tract from report. 304 — President Jackson's views in 1834 in regard to P'rench treaty of 1831. 305— Question again raised re- garding Alaska purchase in 1867. 306 — Position of House on Alaska piircliase; the Senate makes concessions. 307 — Question raised in 1887 on Hawaiian reciprocity treaty; Mr. Tucker's re- port. 417 §280 TREATY-JNIAKING POWER OF THE U. S. [CH. X. Section 308— Treaty of Paris with Spain, 1898; what legislation nec- essary. 309 — Opinions of publicists on this subject. 310 — Supreme Court decisions on this subject. 311 — General conclusions; power of Congress to frustrate and abrogate treaties. 312 — Moral and ethical questions arising. 313 — Alexander Hamilton's views in Federalist not followed by the Supreme Court. Section 314 — Position of Supreme Court as to treaty violations; bur- den thrown on Congress. 315 — Difference between munici- pal and international law in this respect. 316 — Treaty with Denmark con- sidered in this respect; tariff legislation. 317 — Chinese exclusion; conflict of statutes and treaties; opinion of Justice Field. 318 — This same subject treated at length in a subsequent chapter. § 279. First Congress under Constitution meets ; earliest tariff statutes. — The first Congress, under the new Consti- tution, met in the City of New York on March 4, 1789. No act was passed until June 1st, when the first statute of the United States Government was enacted, regulating the time and manner of administering oaths of office ; ^ on Jul\^ 4, 1789, Congress exercised its power to protect by tariff the manufactures of the United States, by the second statute placed upon the statute books of the United States, the first section of which is as follows : " Whereas, it is necessary for the support of government, for the discharge of debts of the United States, and the encouragement and protection of manufactures that duties be laid on goods, war^s and mer- chandise imported : Be it enacted hy the Senate and House of Representatives in Congress assembled, That from and after the first day of August next ensuing, the several duties here- inafter mentioned shall be laid on the following goods, wares and merchandise imported into the United States from any foreign power or place, that is to say : " and then follow the schedules."^ § 280. Power of United States to protect manufactures discussed. — In the debate on this statute many questions were raised as to the power of the United States to " protect " manufactures: while it was conceded that the rio-ht existed §279. 1 1 U. S. Stat, at L. p. 23. 418 nu. S. Stat, at L. p. 24. CH. X.] TREATIES AND CONGKESSIONAL ACTION. § 280 to raise revenue, " protection " to many seemed beyond the power of the Central Government, because it was not specific- ally named or enumerated in the Constitution as having been delegated by the States. Under the leadership of James Madison, however, the bills became statutes, and the Central Government, at the first opportunity, thus exerted on behalf of the industries of the States, the protecting power which the States themselves could not have done under any circumstances or conditions.^ §280. 1 For interesting accounts of the debate on the first tariff acts see McMaster's History of the People of tlie United States, vol. I, pp. 545, et seq.; see also History of the Pro- tective Tariff Laws by R. W. Thomp- son, ex-Secretary of the Navy of the United States, 3d edition, Chi- cago, 1888, from which the follow- ing extract is taken (from chap. IV, p. 47-54): " The first important law passed by the first Congress indicated its character so plainly as to leave no room for any doubt whatsoever. Its title was, 'An act for laying a duty on goods, wares and merchan- dise imported into the United States;' and its first section, or that part which properly stands as its preamble, is in these expressive words: " ' Whereas, it is necessary for the support of the Government, the discharge of the debts of the Uni- ted States, and the encourageiuent andiirotection of mamtfactures, that duties be laid on goods, wares and merchandise imported.' "Plainer, simpler, or more expres- sive language could not be found. It is not equivocal in the least, and every common-sense man, with ordi- nary intelligence, can understand its meaning. It asserts three dis- tinct propositions : first, that duties should be laid for the support of the Government; second, that they should be laid for the payment of the public debt; and third, that they should be also laid for the en- couragement and protection of manufactures. Each of these prop- ositions was distinct from the other two. Yet, whether consid- ered singly or combined, they in- volved the exercisfe by Congress of clearly granted constitutional power — about which, at that time, there was no difference of opinion. "It has been said that this pre- amble was written by Mr. Madison. This is probably true, as the senti- ments conveyed by its language were precisely such as he was known to entertain, and, more than once, expressed. His author- ship of it, however, is not material, inasmuch as — being a member of Congress at the time — he supported and voted for the bill, which passed the House of Representatives by a vote nearly unanimous, there hav- ing been only eight votes against it. The duties discriminated in favor of manufactures, and were therefcue protective as the language above quoted expressly imports. The preamble was manifestly in- tended to convey this idea, for, although not absolutely necessary to the law, it furnishes a rule of interpretation by which its true 419 §282 TREATY-MAKING TOWER OF THE U. S. [CH. X. § -281. Department of Foreign Affairs established; the State Department. — The third statute imposed a duty on tonnage, and the fourth was " An Act for establishing an Ex- ecutive Department to be denominated the Department of Foreign Affairs," passed July 27, 1789,^ which is the founda- tion of the present State Department of the United States throuo-h which all neo;otiations of treaties, and all relations with foreign powers ever since that date have been, and at present are, conducted. The Department of State as it now exists was organized under subsequent acts of Congress, and is now conducted under the provisions of the Revised Stat- utes in relation thereto. §282. No treaties negotiated until 1794. — Although im- mediately after the adoption of the Constitution, the courts were called upon to construe the effects of the treaties which had been negotiated under the Confederation,^ and to deter- mine the rights, duties and liabilities which had been created thereby, no new treaty was concluded by the United States, under the power vested in the Executive and Senate, until more than five years after the adoption of the Constitution ; in fact, it was not until Washington's second term of office meaning is to be ascertained — it is, in other words, an index to point out the legislative intention. The history of this law is, consequently most instructive, not only on ac- count of its great general import- ance, but because it identifies Mr. Madison, by his direct agency in the House of Representatives, and Washington, by his approval of it as President, and nearly all the members of the first Congress, with the first distinctive measure of pro- tection which the exigencies of the public service and the common in- terests of the country demanded at the very beginning of the Gov- ernment. . . . " In supporting the measure, Mr. Madison said: ' There may be some manufactures which, being once formed, can advance toward perfec- 420 tion without any adventitious aid, while others, for want of the foster- inrj hand of the Government, will be unable to go on at all.' In this apt language Mr. Madison embraced the whole question of constitu- tional power. Although it had not been insisted that the protection of manufactures would violate the Constitution, yet, with the motive already indicated, he probably de- sired to place the question of con- stitutionality beyond all cavil, by asserting, at once and unqualifi- edly, that the power existed as a necessary part of the machinery of the new Government." §281. 1 1 U. S. Stat, at L. p. 28. §282. 1 Ware vs. Hylton, U. S. Sup. Ct. 179G, 3 Dallas, 199 and see § 324, et CH. X.] TREATIES AND CONGRESSIONAL ACTION. § 284 that the po\vers vested in him as President to make treaties by and with the consent of two-thirds of the Senate, was exer- cised. § 283. Jay's treaty ; excitement and opposition. — In 1 794, however, the famous Jay treaty ^ was concluded between Great Britain and the United States ; at once excited discus- sion arose ; questions involving the extent of the treaty- making power, as to the right of the President and the Senate to make treaties, the extent to which treaties could alter ex- isting legislation, and also the right or duty of the House of Eepresentatives to participate in the ratification of the treaty, or, if not in the ratification itself, in the legislation necessary to make the treaty effectual, were debated, not only in Phila- delphia where Congress then met, but throughout the entire fifteen States, for by that time Vermont and Kentucky had been admitted to the Union.^ § 284. Strained relations between United States and Great Britain; Wasliington's message.— Grave causes of difference existed at the time of the negotiation of this treaty between the United States and Great Britain;^ in fact, the seg.,Yol. II, for this and other cases affecting treaty of peace with Great Britain. §283. iSee note to § 285, p. 422, 2J0st. 2 Vermont was admitted as the fourteenth State of the Union on March 4, 1791 (1 U. S. St. at L. p. 191; act passed February 18, 1791). Kentucky was admitted as the fif- teenth State on June 1, 1792 ( 1 U. S. St. at L. p. 189; act passed Febru- ary 4, 1791). §284. iln speaking of this treaty, J. C. Bancroft Davis makes tlie follow- ing remarks, and gives the follow- ing references in his notes on Great Britain, p. 1321, in the 1889 edition of the "Compilation of Treaties between the United States and For- eign Powers: " "The treaty concluded by Jay on the 19th of November, 1794, re- moved or suspended these grave causes of difference. It named a day for the withdrawal of British troops from the territories of the United States. The United States undertook to make compensation to British creditors who had been prevented by ' lawful impediments,' in violation of the treaty of 1783, from the recovery of their debts. Great Britain agreed to make com- pensation to the merchants and citizens of the United States whose vessels had been illegally captured or condemned. The United States undertook to make compensation to certain British subjects whose vessels or merchandise had been captured within the jurisdiction of the United States and brought into the same; or had been captured by vessels originally armed in the ports of the United States. It was agreed that provisions and other 421 §285 TREATY-MAKING POWER OP THE U. S. [CH. X. relations between the two countries had become so strained that President Washington informed both Houses of Con- gress by a s])ecial message in regai-d to the occupation by the British of forts in the Western Territory that ''this new state of things suggests the propriety of placing the United States in a posture of effectual preparation for an event which, notwithstanding the endeavors making to avert it, may, by circumstances beyond our control, be forced upon us." 2 § 285. Rights of the people ; necessity of legislation to enforce the treaty. —The Jay treat}'-^ was the first one nego- tiated under the constitutional power, and it gave rise to many important points affecting the people in their relations, both as to those matters which were admittedly under Fed- eral control, and as to those which were admittedly, in the absence of foreign relations, exclusively under State jurisdic- tion ; not only national and commercial relations were af- fected, but the relations of individual debtors to British cred- articles not generally contraband of war should not be confiscated if seized, but that the owners should be fully indemnified; and that vessels approaching a blockaded port, in ignorance of the blockade, should not be detained, nor the caigo confiscated unless contra- band. "The instructions to Jay em- braced many other subjects. How. far they were executed, and why he failed to comply with some of them, will appear by reference to the instructions and correspond- ence which accompanied the President's message of June 8, transmitting the Treaty to the Sen- ate. The reasons which induced the President and his advisers to assent to it are detailed in a letter from Pickering to Monroe of Sep- tember 12, 1795. This treaty was the cause of the long and able de- bates in Congress, which have been referred to in the Introductory 422 Note. On the 5th of May, 1796, President Washington submitted to the Senate an explanatory arti- cle with the reasons which had made it necessary, and another ex- planatory article was added in March, 1798. " The appropriations for carry- ing into effect the Treaty of 1794 were made by Congress on the 6th of May, 1796, and by Parliament on the 4th of July, 1797." See § 295, p. 429, post. -The message was a very brief one dated May 21, 1794, and will be found in Richardson's Messages of the Presidents, vol. I, p. l.>j. §285. 1 Treaty of Amity, Commerce and Navigation; concluded November 19, 1794; ratifications exchanged at London, October 28, 1795, pro- claimed, February 29, 1796; U. S. Treaties and Conventions, edition, 18S9, p. 379, 8 U. S. St. at L. p. 116. CH. X.] TREATIES AND CONGRESSIONAL ACTION. § 287 itors were adjusted and settled. As existing legislation con- flicted to some extent with the provisions of the treaty, the question was at once raised whether Article YI of the Con- stitution, which makes treaties the supreme law of the land, obviated the necessity of new legislation to carry those pro- visions into effect, or whether the treaty was a simple con- tract which required congressional action to carry it out and render its stipulations effective and binding upon the people. § 286. General discussion of these questions.— All of these points were debated not only in Congress and in State Legislatures, but also by the people through the medium of the press and pamphlets, and at mass meetings.^ It is neces- sary, therefore, to briefly review the historical facts con- nected with the negotiation and ratification of this treaty, as well as the proceedings in Congress relating thereto ; this is the more important as questions which were almost identical, arose, and were debated on the same lines, in regard to trea- ties concluded at a later period, and which will be hereafter referred to.^ § 287. John Jay's mission to England ; negotiation of treaty. — John Jay was appointed Envoy Extraordinary to His Britannic Majesty, April 16, 1794.^ He was confirmed on the 19th, and went at once to London, where he entered into negotiations with the Foreign Ofiice, then under the con- trol of Lord Grenville ; on the 19th of November, 1794, he concluded the treaty which ever since has been known by his name, and which was the basis of our commercial relations with Great Britain from its ratification until the war of 1812. The instrument reached the Secretary of State at Philadel- phia on March 7, 1795, just after Congress had adjourned. The president called a special session of the Senate for June 8, 1795 ; when it convened Washington transmitted the treaty with a brief message, stating that it was " for you in your •;§ 286. iSee McMaster's History, vol. 2, cTiap- IX. 2 See § 299, p. 432, post, for refer- ence to subsequent occasions on which this question was discussed in Congress. §287. 1 The documents relating to John Jay's mission to England will be found in vol. I, Foreign Relations of the United States (Folio). They are condensed in Mr. J. C. Bancroft Davis' U. S. Treaties and Conven- tions, edition, 1889, pp. 1321-1.322. 423 § 290 TREATY-MAKING POWEU OF THE U. S. [CH. X. Avisdom to decide wliether you will advise and consent that said treaty be made between the United States and His Britan- nic Majesty."^ § 288. Ratificatiou of treaty with ameiidment.— The Senate tinally ag-reod to ratify the treaty provided Article XII, which related to the West India Treaty, would be suspended by an additional article. This concession was made by Great Britain, and the additional article was incorporated in the treaty ; it was ratified, as thus amended, by the close vote of 20 to 10, exactly two thirds, the required constitutional ma- jorit}^' The ratifications were signed by the President, transmitted to London and exchanged October 28, 1795.^ § 289. Popular excitement ; Freueli and English parties. — From the time that the treaty Avas published until long after Congress had convened in December, meetings were held throughout the whole country, most of them for the pur- pose of denouncing the treaty, but some of them to urge its rat- ification. By reason of the great friendly feeling for France, and the unfriendly feeling against Great Britain, which nat- urall}' existed as the outcome of the war for Independence which had terminated less than a dozen years earlier, great party feeling was stirred up against the treaty, and to a great extent the people of the United States w^ere divided into what might be called British and French parties ; it was indeed a strange sight to see the people of this Republic divided on issues affecting two foreign European nations.^ § 290. Meeting of Congress ; message of the President. — While the treaty had a large majority in the Senate, such was not the case in the House of Representatives. Congress met on the 7th of December, 1795, and was opened, accord- 2 Ricliaidson's Messages of the Presidents vol. 1, p. 170. §288. ^Foi" reference to otlier treaties similarly rutilied with amend ments see § 465. chap. XVI, Vol. il. - U. S. Treaties and Conventions, edition, 1889; pp. 379, 1321; see also McMaster's History of the People of the United States, vol. 2, chap. IX. 424 §289. 1 A graphic account of this na- tional debate will be found in the 9th chapter of the 2d volume of McMaster's History of the People of the United States, to which students of this incident of American political history are referred, as in detail it would re- quire more space tlian can be de- voted to it in this volume. CH. X.] TREATIES AND CONGRESSIONAL ACTION, § 291 ing to the custom of those days, by the President, in person. No direct reference was made, however, to the treaty either in his opening address, or in the reply which it was then cus- tomary for the Houses to make to the President's address, except as the general hope was expressed in the House reply, that, by treaty and amicable negotiation, all causes of exter- nal discord might be " extinguished on terms compatible with our national rights and honor and with our Constitu- tion and great commercial interests." ^ Not until March 1, 1796, were the ratifications returned; the treaty together with the fact that the ratifications had been exchanged being transmitted in a message of less than six lines by the President to both Houses of Congress. De- bate at once began in Congress as to the extent of the bind- ing force of those stipulations in the treaty which either contlicted with existing legislation, or which required new legislation, or appropriations of money, to carry them into effect. § 291. Request of House of Representatives for papers relating to treaty. — On March 2d, Mr. Livingston offered a resolution requesting the President to lay before the House copies of the instructions to the Minister of the United States who had negotiated the treaty with Great Britain, together with the correspondence and other documents re- lating thereto, with the exception of such papers as any ex- isting negotiations might render improper to be disclosed ; debate then followed which lasted for more than two weeks, in which many leading members participated, and the treaty- making power was discussed in every phase and aspect, both as to its extent, and as to the effect of treaties upon legisla- tion, both State and Federal.^ On March 24th, the resolu- tion was carried by sixty-two to thirty-seven. Messrs. Liv- ingston and Gallatin were sent as a committee to present the resolution to the President, who replied, as they reported to the House on their return, " that he would take it into con- sideration." §290. 1 Richardson's Messages of the Presidents, vol. 1, p. 182-189. §291. 1 Keforonce is again made to Mc- Master's History, vol. 2, cbnp. IX. 425 J< ■29-2 TRKATY-MAKINT, POWKR OF THE U. R. [CH. X. § 202. President Wasliiiii?loii's reply to the House The reply returned by the President to the House of liepresen- tatives, March 30, 1796, showed that he thoroughly appreci- ated the effect of acceding to the request, as well as the ef- fect that the precedent, if established, might have in altering the entire plan of the Constitution, as to the powers and func- tions of the Executive. He, therefore, declined to furnish the papers. This reply is one of those documents that will endure in the constitutional history of this country as long as the Constitution stands, a monument alike to "Washington's astute diplomacy as well as to his great ability. It is of suflBcient importance to be quoted at length, and it will be found in its entiretv in the notes to this section.^ § 292. 1 " United States, March 30, 1796. " To the House of Representatives of the United States: " With the utmost attention I have considered your resolution of the 24th instant, requesting me to lay before your House a copy of the instructions to the minister of the United States who negotiated the treaty with the King of Great Brit- ain, together with the correspond- ence and other documents relative to that treaty, excepting such of the said papers as any existing ne- gotiation may render improper to be disclosed. " In deliberating upon this subject it was impossible for me to lose sight of the principle which some have avowed in its discus.sion, or to avoid extending my views to the consequences which must flow from the admission of that principle. " I trust that no part of my con- duct has ever indicated a disposi- tion to withhold any information which the Constitution has en- joined upon the President as a duty to give, or which could be required of him by either House of Con- 426 gress as a right; and with truth I affirm that it has been, as it will continue to be while I have the honor to preside in the Government, my constant endeavor to harmon- ize with the other branches thereof so far as the trust delegated to me by the people of the United States and my sense of the obligation it imposes to 'preserve, protect, and defend the Constitution' will per- mit. "The nature of foreign negotia- tions requires caution, and their success must often depend on se- crecy; and even -when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a CH. X.] TREATIES AND CONGRESSIONAL ACTION. § 293 § 293. Effect of Washington's reply ; action by the Honse. — By this move "Washington forced the House of Rep- small number of members. To ad- mit, then, a right in the House of Representatives to demand and to have as a matter of course all the pipers respecting a negotiation with a foreign power would be to establisli a dangerous precedent. " It does not occur that the inspec- tion of the papers asked for can be relative to any purpose under the cognizance of the House of Repre- sentatives, except that of an im- peachment, which the resolution has not expressed. I repeat that I have no disposition to withhold any information which the duty of my station will permit or the public good shall require to be disclosed; and, in fact, all the pa- pers affecting the negotiation with Great Britain were laid before the Senate when the treaty itself was communicated for their considera- tion and advice. " The course which the debate has taken on the resolution of the House leads to some observations on the mode of making treaties under the Constitution of the United States. " Having been a member of the General Convention, and knowing the principles on which the Con- stitution was formed, I have ever entertained but one opinion on this subject ; and from the first estab- lisliment of the Government to this moment my conduct lias ex- emplified that opinion — that the power of making treaties is exclu- sively vested in the President, by and witli the advice and consent of the Senate, provided two-thirds of the Senators present concur; and that every treaty so made and promulgated thenceforward be- came the law of the land. It is thus that the treaty-making power has been understood by foreign nations, and in all the treaties made with them we have declared and they have believed that, when ratified by the President, with the advice and consent of the Senate, they became obligatory. In this construction of the Constitution every House of Representatives has heretofore acquiesced, and until the present time not a doubt or suspicion has appeared, to my knowledge, that this construction was not the true one. Nay, they have more than acquiesced; for till now, without controverting the obligation of such treaties, they have made all the requisite pro- visions for carrying them into effect. " There is also reason to believe that this construction agrees with the opinions entertained by the State conventions when they wei'9 deliberating on the Constitution, especially by those who objected to it because there was not re- quired in commercial treaties the consent of two-thirds of the whole number of the members of the Senate instead of two thirds of the Senators present, and because ia treaties respecting territorial and certain other rights and claims the concurrence of threc-foui-ths of the whole number of the members of both Houses, respectively, was not made necessary. " It is a fact declared by the Gen- eral Convention and universally understood that the Constitution of the United States was tha result of a spirit of amity and mutual concession; and it is well known 427 §294 TREATY-MAKING POWER OF THE U. S. [CH. X. resentatives to recognize the fact tliat the treaty-making power of the Constitution was lodged in the Executive, sub- ject only to the i-atification of two-thirds of the Senate, and that the House could not participate therein as a matter of right, to any extent whatever ; a resolution was at once passed by the House of Representatives, which recognized the sound basis on which the President's reply was based, and in which that body distinctly disclaimed any agency in making treaties, but asserted the principle that when a call was made on the President for information it was not neces- sary to state why the information was wanted ; the object of this resolution was evidently to convey the idea that the House did not wish to investigate as to hoio the Executive had made the treaty, but to ascertain what legislation was neces- sary to carry it into effect, and what the dut}' of the House was in this respect. It was, however, a distinct victory for the Executive.^ § 204. Other treaties ratified by the Senate, and before tlie House. — Meanwhile other treaties had been negotiated Avith Spain, Algiers, and some of the Indian tribes, all that under this influence the smaller States were admitted to an equal representation in the Senate with the lar9, et seq., ante, of this Appendix.) Two separate briefs for the appellants were filed in the Supreme Court. (Ins. Cas. Rec, pp. 879-930. For analysis and list of authori- ties cited see Table of Contents Ins. Cas. Rec, pp. xxxi-xxxiii.) A large part of these briefs was devoted to the questions of jurisdiction of the Court of Claims to hear cases of this nature. The decision in this case was controlled by the decision in Booley vs. United States, (182 U. S. 222,) and no separate opinion was delivered. On May 27, 1901, Mr. Justice Brown delivered the opinion of the court as follows (182 U. S. 244): "This case is controlled by the case of Donley vs. United States, (No. 501,) just decided. So far as the duties were exacted upon goods im- ported prior to the ratification of the treaty of April 11. 1899, they were properly exacted. So far as they were imposed upon importations after INStTLAR CASES APPENDIX. 503 that date and prior to December 5, 1899, plaintiff is entitled to recover tbem back. " The judgment of the Court of Claims is therefore reversed and the case remanded to that court for further proceedings not inconsistent with this opinion." VIII. Chkistian Huus, Appellant, vs. New York and Porto Rico Steamship Company. The Porto Rico Pilotage Case. On a certificate for the United States Circuit Court of Appeals for the Second Circuit. No. 514. October Term, 1900. Transcript filed December 18, 1900. (Ins. Cas. Rec. p. 931.) For the libellant, appellant. Lindsay, Kremer, Kalish & Palmer, 27 William St., New York, Proctors, for libellants. William Lindsay, of counsel, in the Supreme Court. For the respondents, appellee. Curtis, Mallet-Prevost and Colt, 30 Broad St., New York City. William Edmond Curtis and F. Kingsbury Curtis, of counsel. In this case a pilot libeled an American built steamship belonging to a New York corporation for the amount of his pilotage, his services hav- ing been refused on the ground that he was entitled to pilotage as the vessel was not engaged in a coastwise trade and was therefore re- quired to take pilot. The vessel was enrolled and licensed for the coast- ing trade between New York and Porto Rico. The libel was dismissed by the District Court (105 Fed. Rep. 74) ; an appeal was taken to the Cir- cuit Court of Appeals which certified the following questions to the Supreme Court for instructions (182 U. S. 392): " 1. Since the proclamation of the treaty of peace between the United States and the Kingdom of Spain, and the passage of the act of Con- gress entitled ' An act temporarily to provide revenues and civil govern- ment for Porto Rico, and for other purposes,' (approved April 12, 1900,) do Porto Rican ports remain foreign ports in the sense in which those words are used in the statutes of the State of New York regulating pilotage ? "2. Are vessels engaged in trade between Porto Ricim ports and ports of the United States engaged in the coasting trade in the s(!nse in whicli those words are used in the statutes of the State of New York regulat- ing pilotage? "3. Are steam vessels engaged in trade between Poito Rican ports and ports of the United States coastwise steam vessels in the sense in 504 TREATY-MAKTXG POWEK OF THE U. S. ■which those words are used in section 4444 of the Revised Statutes of the Uuited States ? " The case was advanced in the Supreme Court and argued January 11, 1901. William Lixusay argued for the appellants and W. F. KiNQS- BUKY CuKTis, fur tiie appellee. Fur briefs in this case see Ins. Cas. Kec. pp. 937-1013, and for analysis and list of authorities cited, See Table of Contents Ins. Cas. Kec. pp. xxxiv-xxxvii. This case was decided May 27, 1901. OPINION BROWN, J., IN PILOTAGE CASE. Mr. Justice Brown delivered the opinion of the court and answered the second and third questions in the affirmative which rendered an answer to the first question unnecessary. The opinion is brief and defines the expressions " foreign ports," "foreign commerce" and "coastwise trade," holding that the words "coasting trade " are intended to include domestic trade in the United States upon other than interior waters, and that vessels engaged in trade between Xew York and Porto Rico are in the coasting trade, and not subject to pilotage laws relating to foreign vessels. After discussing the pilotage laws the opinion says (182 U. S. p. 39-5): " As the statement of facts connected with the question certified shows that the Ponce was an American built steamship, sailing from New York, belonging to a New York corporation, enrolled and licensed for the coasting trade, navigated by a master duly licensed to act as pilot in the bay and harbor of New York, under the laws of the United States, and was engaged in trade between the Island of Porto Rico and the port of New York, the only question remaining to be considered is whether she was a coastioise seagoing steam vessel under Rev. Stat. sec. 4401, and actually employed in the coasting trade by way of Sandy Hook under sec. 2111 of the New York Consolidation Act. "Under the commercial and navigation laws of the United States merchant vessels are divisible into two classes: First, vessels registered pursuant to Rev. Stat., sec. 4131. These must be wholly' owned, com- manded and officered by citizens of the United States, and are alone entitled to engage in foreign trade; and, second, vessels enrolled and licensed for the coasting trade or fisheries. Rev. Stat. sec. 4311. These may not engage in foreign trade under penalty of forfeiture. Sec. 4.337. This class of vessels is also engaged in navigation upon the Great Lakes and the interior waters of the country — in other words, they are engaged in domestic instead of foreign trade. "The words ' coasting trade,' as distinguishing this class of vessels, seem to have been selected because at that time all the domestic com- merce of the country was either interior commerce, or coastwise, be- tween ports upon the Atlantic or Pacific coasts, or upon islands so near thereto, and belonging to the several States, as properly to constitute a part of the coast. Strictly speaking Porto Rico is not such an island, as it is not only situated some hundreds of miles from the nearest port on the Atlantic coast, but had never belonged to the United States, or any of the States composing the Union. At the same time trade with INSTJLAR CASES APPENDIX. 505 that island is properly a part of the domestic trade of the country since tlie treaty of annexation, and is so recognized by tlie Porto Rican or Foraker act. By section 9 the Commissioner of Navigation is required to ' make such regulations ... as he may deem expedient for the nationalization of all vessels owned by the inhabitants of Porto Rico ou April 11, 1899, . . . and for the admission of the same to all the benefits of the coasting trade of the United States; and the coasting trade between Porto Rico and the United States shall be regulated in accordance with the provisions of law applicable to such trade between any two great coasting districts of the United States.' By this act it was evidently intended, not only to nationalize all Porto Rican vessels as vessels of the United States, and to admit them to the benefits of their coasting trade, but to place Porto Rico substantially upon the coast of the United States, and vessels engaged in trade between that island and the continent, as engaged in the coasting trade. This was the view taken by the executive officers of the government in issuing an enrollment and license to the Ponce, to be employed in carrying on the coasting trade, instead of treating her as a vessel engaged in foreign trade. "That the words 'coasting trade' are not intended to be strictly lim- ited to trade between ports in adjoining districts is also evident from Rev. Stat. sec. 4358, wherein it is enacted that 'the coasting trade between the territory ceded to the United States by the Emperor of Russia, and any other portion of the United States, shall be regulated in accordance with the provisions of law applicable to such trade between any two great districts.' These great districts were, for the more convenient regulation of the coasting trade, divided by the act of March 2, 1819, (3 Stat. 492, c. 48) as amended by act of May 7, 1822, (3 Stat. 684; Rev. Stat. sec. 434S,) as follows: 'The first to include all the collection dis- tricts on the seacoast and navigable rivers between the eastern limits of the United States and the southern limits of Georgia; the second to in- clude all the collection districts on the seacoast and navigable rivers between the river Perdido and the Rio Grande; and the third to include all the collection districts on the seacoast and navigable rivers between the southern limits of Georgia and the river Perdido.' A provision sim- ilar to that for the admission of the Territory of Alaska was also adopted in the act to provide a government for the Territory of Hawaii, (31 Stat. 141, sec. 98,) which provides that all vessels carrying Hawaiian registers on August 12, 1888, and owned by citizens of the United States or citizens of Hawaii, ' shall be entitled to be registered as Amer- ican vessels, . . . and the coasting trade between the islands afore- said and any other portion of the United States shall be regulated in accordance with the provisions of law api)licable to such trade be- tween any two great coasting districts.' " This use of the words ' coasting trade ' indicates very clearly that the words were intended to include the domestic trade of the United States upon other than interior waters. Tiie District Court was correct in holding that the Ponce was engaged in the coasting trade, and that the New York pilotage laws did not apply to her. 506 TREATV-lsrAKTNrr roWKT^ OF THE U. S. "The second nnd third questions arc therefore answered in the affirm- ative. An answer to the first question becomes unnecessary." IX. George W. Ceossmax et al., Appellants, vs. The United States. The Hawaiian Islands Case. Appeal from the Circuit Court of the United States for the Southern District of New York. No. 515. October Term, 1900. Transcript filed December 18, 1900. (Ins. Cas. Rec. p. 1015.) For the appellants: CuKiE, Smith & Maxwell, 20 William St., New York City. Chaeles Curie, W. Wickuam Smith, of counsel. For the United States: In the Circuit Court, Henry L. Burnett, United States District At- torney, and Henry C. Platt, Assistant. In the Supreme Court, John W. Griggs, Attorney General, and John K. Richards, Solicitor General. The action was brought to recover duties paid in New York on mer- chandise brought from the Hawaiian Islands after July 7, 1898, the date of the joint resolution of Congress annexing the Hawaiian Islands. The protest of the importers was first heard and decided adversely to them by the Board of General Appraisers, July 27, 1900, Somerville Gen'l App'r, writing the opinion (Ins. Cas. Rec. p. 1021). From this decision the importers appealed to the Circuit Court of the United States under the Customs Administrative Act. The decision was affirmed, Townsend. J., December 13, 1900 (Ins. Cas. Rec. p. 1023, opinion in full, also reported in 105 Fed. Rep. 608). An appeal was taken to the Supreme Court (Ins. Cas. Rec. p. 1027) a motion to advance the cause was granted and the case was argued Jan- uary 14 and 15, 1901. The briefs and arguments for the United States were the same as those in De Lima vs. BiclweU, (see pp. 469, et seq., ante, of this Appendix. For Solicitor-General's argument, see Ins. Cas. Rec. p. 1063. For the brief and arguments for appellants, see Ins. Cas. Rec. pp. 1033-1061, and for analysis and list of authorities cited, see Table of Contents, Ins. Cas. Rec. pp. xxviii-xxxix). This case was decided on May 27, 1901 (182 U. S. 221). The opinion whicli is only ten lines was delivered by Mr. Justice BROwn and is also entitled in the case of Goetze vs. United States, (see pp. 465, etseq., ante, of this appendix) as follows: " As the sole question presented by the record in these cases was whether Porto Rico and the Hawaiian Islands were foreign countries within the meaning of the tariff laws, we must hold, for the reasons mSTILAR CASES APPENDIX. 507 stated in Be Lima vs. Bidwdl, just decided, that the board of general appraisers had no jurisdictit)a of the cases. " Tlie judgineuts of the Circuit Court are therefore reversed, and the cases remauded to that court with instructions to reverse the action of the board of general appraisers." Protocol of Agreement betvfeen the United States and Spain, Embodying the Terms of a Basis for the Establishment of Peace between the two Countries. [Signed at Washington in English and French, August 12, 1898. 30 U. S. Stat, at Large, 1742.] The English text is as follows: PROTOCOL. William R. Day, Secretary of State of the United States, and His Excellency Jules Cambon, Ambassador Extraordinary and Plenipoten- tiary of the Republic of France at Washington, respectively possessing for this purpose full authority from the Government of the United States and the Government of Spain, have concluded and signed the following articles, embodying the terras on which the two Governments have agreed in respect to the matters hereinafter set forth, having in view the establishment of peace between the two countries, that is to say: Article I. Spain will relinquish all claim of sovereignty over and title to Cuba. Article II. Spain will cede to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and also an island in the Ladrones to be selected by the United States. Article III. The United States will occupy and hold the city, bay and harbor of Manila, pending the conclusion of a treaty of peace wliich shall deter- mine the control, disposition and government of the Philippines. Article IV. Spain will immediately evacuate Cuba, Porto Rico and other islands now under Spanish sovereignty in the West Indies; and to this end each Government will, within ten days after the signing of this proto- col, appoint Commissioners, and the Commissioners so appointed shall, within thirty days after the signing of this protocol, meet at Havana for the purpose of arranging and carrying out the details of the afore- said evacuation of Cuba and the adjacent Spanish islands; and each Government will, within ten days after the signing of this protocol, also appoint other Commissioners, who shall, within tliirty days after the signing of this protocol, meet at San Juan, in Porto Rico, for the purpose of arranging and carrying out the details of the aforesaid evac- uation of Porto Rico and other islands now under Spanish sovereignty in the West Indies. 508 TREATY-MAKING POWER OF THE U. S. AlITICLE V. The United States and Spain will each appoint not more than five comraissionors to treat of peace, and the commissioners so appointed shall meet at Paris not later than October 1, 1898, and proceed to the uenotiation and conclusion of a treaty of peace, which treaty shall he subject to ratilication according to tiie respective constitutional forms of the two countries. Akticle VI. Upon the conclusion and signing of this protocol, hostilities between the two countries shall be suspended, and notice to that effect shall be given as soon as possible by each Government to the commanders of its military and naval forces. Done at Washington in duplicate, in English and in French, by the Undersigned, who have hereunto set their hands and seals, the 12th day of August, 1898. [seal] William R. Day. [seal] Jules Cambon. Treaty of Peace between the United States of America and THE Kingdom of Spain. Signed at Paris, December 10, 1898 ; ratification advised by the Senate, February 6, 1899 ; ratified by the President February 6, 1899 ; ratified by her Majesty the Queen Regent of Spain, March 19, 1899 ; ratifica- tions exchanged at Washington April 11, 1899 ; proclaimed, Washing- ton, April 11, 1899; [U. S. Stats. Vol. SO,}). 1754, U. S. Treaties in Force, 1899, p. 595). This treaty is in English and Spanish; the English text is as follows: The United States of America and Her Majesty the Queen Regent of Spain, in the name of her august son Don Alfonso XIII, desiring to end the state of war now existing between the two countries, have for that purpose appointed as plenipotentiaries: The President of the United States, William R. Day, Cushman K. Davis, William P. Frye, George Gray, and Whitelaw Reid, citizens of the United States; And Her Majesty the Queen Regent of Spain, Don Eugenio Montero Rios, president of the senate, Don Buenaven- tura fie Abarzuza, senator of the Kingdom and ex-minister of the Crown; Don Jose de Garnica, deputy to the Oortes and associate justice of the supreme court; Don Wenceslao Ramirez de Villa-Urrutia, envoy extra- ordinary and minister plenipotentiary at Brussels, and Don Rafael Cerero, general of division; Who, having assembled in Paris, and having exchanged their full powers, which were found to be in due and proper form, have, after dis- cussion of the matters before them, agreed upon the following articles: Article I. Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its evacuation by Spain, to be occupied by INSULAR CASES APPENDIX. 509 the Uaited States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may undex" inter- national law result from the fact of its occupation, for the protection of life and property. Article II. Spain cedes to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and the island of Guam in the Marianas or Ladrones. Article III. Spain cedes to the United States the archipelago known as the Phil- ippine Islands, and comprehending the islands lying within the follow- ing line: A line running from west to east along or near the twentieth parallel of north latitude, and through the middle of the navigable channel of Bachi, from the 118th to the 127th degree meridian of longitude east of Greenwich, thence along the 127th degree meridian of longitude east of Greenwich to the parallel of 4'^ 45' north latitude, thence along the parallel of 4° 45' north latitude to its intersection with the meridian of longitude 119° 35' east of Greenwich, thence along the meridian of longi- tude 119° 35' east of Greenwich to the parallel of latitude 1° 40' north; thence along the parallel of latitude of 7° 40' north to its intersection with the llfjth degree meridian of longitude east of Greenwich, thence by a direct line to the intersection of the 10th degree parallel of north latitude with the 118th degree meridian of longitude east of Greenwich, and thence along the llSth degree meridian of longitude east of Green- wich to the point of beginning. (In the original tlie numerals are written out in full.) The United States will pny to Spain the sum of twenty million dol- lars ($20,000,000) within three months after the exchange of the ratifi- cations of the present treaty. Article IV. The United Slates will, for the terra of ten years from the date of the exchange of the ratifications of the present treaty, admit Spanish ships and merchandise to the ports of the Philippine Islands on the same terms as ships and merchandise of the United States. Article V. The United States will, upon the signature of the present treaty, send back to Spain, at its own cost, the Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces. The arms of the soldiers in question shall be restored to them. Spain will, upon the exchange of the ratifications of the present treaty, proceed to evacuate the Philippines, as well as the island of Guam, on terms similar to tliose agreed upon by the Commissioners appointed to arrange for the evacuation of Porto Rico and other islands 510 TKEATV-MAKING POWiat OF THE U, S. iu the West Indies, under the Protocol of August 12, 1898, which is to contiuuo iu force till its provisions are completely executed. The time within which tlie evacuation of the Philippine Islands and Guam shall be completed shall be fixed by the two Governments. Stands of colors, uncaptured war vessels, small arms, guns of all cali- bres, with their carriages and accessories, powder, ammunition, live- stock, and materials and supplies of all kinds, belonging to the land and naval forces of Spain in the Philippines and Gaum, remain the property of Spain. Pieces of heavy ordnance, exclusive of field artil- lery, iu the fortifications and coast defences, shall remain in their em- placements for the term of six montlis, to be reckoned from the ex- change of ratifications of the treaty; and the United States may, in the meantime, purchase such material from Spain, if a satisfactory agreement between the two Governments ou the subject shall be reached. Akticle VI. Spain will, upon the signature of the present treaty, release all prison- ers of war, and all persons detained or imprisoned for political offences, in connection with the insurrections in Cuba and the Philipiiines and the war with the United States. Reciprocally, the United States will release all persons made pi'ison- ers of war by the American forces, and will undertake to obtain the release of all Spanish prisoners in the hands of the insurgents in Cuba and the Philippines. The Government of the United States will at its own cost return to Spain and the Government of Spain will at its own cost return to the United States, Cuba, Porto Rico, and the Philippines, according to the situation of their respective homes, prisoners released or caused to be released by them, respectively, under this article. Article VII. The United States and Spain mutually relinquish all claims for in- demnity, national and individual, of every kind, of either Government, or of its citizens or subjects, against the other Government, that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war. The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article. Article VIII. In conformity with the provisions of Articles I, II, and III of this treaty, Spain relinquishes in Cuba, and cedes in Porto Rico and other islands in the West Indies, in the island of Guam, and in the Philip- pine Archipelago, all the buildings, wharves, barracks, forts, struc- tures, public highways and other immovable property which, in con- formity with law, belong to the public domain, and as such belong to the Crown of Spain. INSULAR CASES APPENDIX. 511 And it is hereby declared tliat the relinqnishmeut or cession, as the case may be, to which the preceding paragraph refers, cannot in any respect impair the property or rights which bylaw belong to the peace- ful possession of property of all kinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and possess prop- erty in the aforesaid territories i-enounced or ceded, or of private in- dividuals, of whatsoever nationality such individuals may be. Tlie aforesaid relinquishment or cession, as tlie case maybe, includes all documents exclusively referring to the sovereignty relinquished or ceded that may exist in the archives of the Peninsula. Where any document in such archives only in part relates to said sovereignty, a copy of such part will be furnished whenever it shall be requested. Like rules shall be reciprocally observed in favor of (Spain in respect of docu- ments in the archives of the islands above referred to. In the aforesaid relinquisliraent or cession, as the case may be, are also included such rights as the Crown of Spain and its authorities possess in respect of the official archives and records, executive as well as judicial, in the islands above referred to, which relate to said islands or the lights and property or their inhabitants. Such archives and records shall be carefully preserved, and private persons shall without distinction have the right to require, in accordance with law, authenticated copies of the contracts, wills and other instruments forming part of notorial protocols or files, or which may be contained in the executive or judicial archives, be the latter in Spain or in the islands aforesaid. Article IX. Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sov- ereignty, may remain in such territory or may remove therefrom, re- taining in either event all their rights of property, including the riglit to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce and profes- si(ms, being subject in respect thereof to such laws as are applicable to other foreigners. In case they remain in the territory they may pre- serve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such alle- giance; in default of which declaration they shall be held to have re- nounced it and to have adopted the nationality of the territory in which they may reside. The civil rights and political status of tlie native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress. Article X. The inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of their religion. , 512 TREATY-MAKING POWER OF THE U. S. AUTICLE XI. The Spaniards residia2; in the territories over which Spain by this treaty ceiies or rclinquislies her sovereignty sliall be subject in matters civil as well as criminal to the jurisdiction of the courts of the country wherein tliey reside, pursuant to the ordinary laws governing the same; and they shall have the right to appear before such couits, and to pur- sue the same course as citizens of the country to which the courts be- long. Article XII. Judicial proceedings pending at the time of the exchange of ratifica- tions of this treaty in the territories over which Spain relinquishes or cedes her sovereignty shall be determined according to the following rules: 1. Judgments rendered either in civil suits between private individ- uals, or in criminal matters, before the date mentioned, and with respect to which there is no recourse or right of review under the Spanish law, shall be deemed to be final, and shall be executed in due form by com- petent authority in the territory within which such judgments should be carried out. 2. Civil suits between private individuals which may (m the date mentioned be undetermined shall be prosecuted to judgment before the court in which they may then be pending or in the court that may be substituted therefore. 3. Criminal actions pending on the date mentioned before the Su- preme Court of Spain against citizens of the territory which by this treaty ceases to be Spanish shall continue under its jurisdiction until final judgment; but, such judgment having been rendered, the execu- tion thereof shall be committed to the competent authority of the place in which the case arose. Article XIII. The rights of property secured by copyrights and patents acquired by Spaniards in the Island of Cuba and in Porto Rico, the Philippines and other ceded territories, at the time of the exchange of the ratifica- tions of this treaty, shall continue to be I'cspected. Spanish scientific, literary and artistic works, not subversive of public order in the terri- tories in question, shall continue to be admitted free of duty into such territories, for the period of ten years, to be reckoned from the date of the exchange of the i-atifications of this treaty. Article XIV. Spain shall have the power to establish consular officers in the ports and places of the territories, the sovereignty over which has been either relinquished or ceded by the present treaty. Artfcle XV. The Government of each country will, for the term of ten years, aceord to the merchant vessels of the other country the same treatment INSULAR CASES APPENDIX. 613 in respect of all port charges, including entrance and clearance dues, light dues, and tonnage duties, as it accords to its own merchant ves- sels, not engaged in the coastwise trade. This article may at any time be terminated on six months' notice given by either Government to the other. Akticle XVI. It is understood that any obligations assumed in this treaty by the United States with respect to Cuba are limited to the time of its occu- pancy thereof; but it will upon the termination of such occupancy, advise any Government established in the islands to assume the same obligations. Article XVII. The present treaty shall be ratified by the President of the United States, by and with tlie advice and consent of the Senate thereof, and by Her Majesty the Queen Regent of Spain; and the ratifications shall be exclianged at Washington within six months from the date hereof, or earlier if possible. In faith whereof, we, the respective Plenipotentiaries, have signed this treaty and have hereunto affixed our seals. Done in duplicate at Paris, the tenth day of December, in the year of Our Lord one thousand eight hundred and ninety-eight. [seal] William K. Day, [seal] Eugenio Monteko Rios, [seal] Cushman K. Davis, [seal] B. de Abakzuza, [seal] William P. Fkye, [seal] J. de Garxica, [seal] Geo. Gray, [seal] W. R. de Villa Urrutia, [seal] Whitelaw Reid, [seal] Rafael Cerero. See Foreign Relations Report of United States, 1898, for correspon- dence relating to the foregoing Protocol (pp. 819, et seq.), and to the Treaty (pp. 904, et seq.) joint resolution to provide for annexing the HAWAIIAN ISLANDS TO THE UNITED STATES (30 U. S. Statutes at Large, 750). Whereas, tlie government of the Republic of Hawaii having, in due form, signified its consent, in tlie manner provided by its constitution, to cede absolutely and without reserve to the United States of America all rights of sovereignty of whatsover kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absnlute fee and ownership of all public, government, or crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining: Therefore, Resolved by the Senate and House of Representatives of the United States of Americn in Com/ress assembled, That said cession is accepted ratified and confirmed, and that the said Hawaiian Islands and their de- pendencies be, and they are hereby, annexed as a part of the territory 83 514 TREATY-MAKING POWER OF THE U. S. of the United States ami are subject to the sovereign dominion thereof^ and that all and singular the property and rights hereinbefore men- tioned are vested iu the United States of America. The existing laws of the United States relative to public lands shall not apply to such lands in the Hawaiian Islands; but the Congress of the United States shall enact special laws for their management and disposition: Provided, That all revenue from or proceeds of the same, except as regards such part thereof as may be used or occupied for the civil, military or naval purposes of the United States, or may be assigned for the use of the local government, shall be used, solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes. Until Congress shall provide for the government of such islands all the civil, judicial and military powers exercised by the officers of the exist- ing government in said islands shall be vested in such person or persons and shall be exercised in such manner as the President of the United States shall direct; and the President shall have power to remove said officers and fill the vacancies so occasioned. The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter concluded, between the United States and such foreign nations. The municipal legislation of the Hawaiian Islands, not enacted for the fulfillment of the treaties so extinguished, and not inconsistent with this joint resolution nor contrary to the Con- stitution of the United States nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine. Until legislation shall be enacted extending the United States customs laws and regulations to the Hawaiian Islands the existing customs rela- tions of the Hawaiian Islands with the United States and other coun- tries shall remain unchanged. The public debt of the Republic of Hawaii, lawfully existing at the date of the passage of this joint resolution, including the amounts due to depositors in the Hawaiian Postal Savings Bank, is hereby assumed by the Government of the United States; but the liability of the United States in this regard shall in no case exceed four million dollars. So long, however, as the existing Government and the present commercial relations of the Hawaiian Islands are continued as hereinbefore pro- vided, said Government shall continue to pay the interest on said debt. There shall be no further immigration of Chinese into the Hawaiian Islands, except upon such conditions as are now or may hereafter be allowed by the laws of the United States; and no Chinese, by reason of anything herein contained, shall be allowed to enter the United States from the Hawaiian Islands. The President shall appoint five commissioners, at least two of whom shall be residents of the Hawaiian Islands, who shall, as soon as reason- ably practicable, recommend to Congress such legislation concerning the Hawaiian Islands as they shall deem necessary or proper. Sec. 2. That the commissioners hereinbefore provided for shall be INSULAR CASES APPENDIX. 515 appointed by the President, by and with the advice and consent of the Senate. Sec. 3. That the sum of one hundred tliousand dollai-s, or so much tliereof as may be necessary, is hereby appropriated, out of any money in the Treasury not otlierwise appropriated, and to be immediately available, to be expended at the discretion of the President of the United States of America, for the purpose of carrying this joint resolu- tion into effect. Approved, July 7, 1898. TABIFF PROVISIONS OP THE FORAKER ACT. Act of April 12, 1900, chapter 191 of the 56th Congress, 1st session. 31 U. S. Stat, at Large, pp 77-86. An Act Teiiipor.irily to provide reveuiies and a civil government for Porto Rico, and for other purposes. Be it enacted etc., That the provisions of this Act shall apply to the Island of Porto Rico and to the adjacent islands and waters of the islands lying east of the seventy-fourth meridian of longitude west of Green- wich, which were ceded to the United States by the Government of Spain by treaty entered into on the tenth day of December, eighteen hundred and ninety-eight; and the name Porto Kico, as used in this Act, shall be held to include not only the island of that name, but all the adjacent islands as aforesaid. (This act consists of forty-one sections. The tariff provisions only were involved in the Insular cases; they are here quoted at length as in the opinion of Chief Justice Fuller in Downes vs. Bidwell, 182 U. S. pp. 349 et seq. Sec. 2. That on and after the passage of this Act the same tariffs, cus- toms, and duties shall be levied, collected, and paid upon all articles imported into Porto Rico from ports other than those of the United States wliicli are required by law to be collected upon articles imported into tlie United States from foreign countries: Provided, That on all cotfee in the bean or ground imported into Porto Rico there shall be levied and collected a duty of five cents per pound, any law or part of law to the contrary notwithstanding: And provided further. That all Spanish scientific, literary, and artistic works, not subversive of public order in Porto Rico, shall be admitted free of duty into Porto Rico for a period of ten years, reckoning from the eleventh day of April, eigh- teen hundred and ninety-nine, as provided in said treaty of peace be- tween the United Statesand Spain : And provided further, That all books and pamphlets printed in the English language shall be admitted into Porto Rico free of duty when imported from the United States. Sec. 3. That on and after the passage of this act all merchandise coming into the United States from Porto Rico and coming into Porto Rico from the United States shall be entered at the several ports of en- try upon payment of fifteen per centum of the duties which are required to be levied, collected, and paid upon like articles of merchandise im- ported from foreign countries; and in addition thereto upon articles of merchandise of Porto Rican manufacture coming into the United States 51(3 TREATY-MAKING POWER OF THE U. S. aud wiilidiawu for cousumption or sale upon payment of a tax equal to tlie iuternal-reveiiue tax imposed in the United States upon the like ar- ticles of merchandise of domestic manufacture; sucli tax to be paid by internal-revenue stamp or stamps to be purchased and provided by the Commissioner of Internal Keveuue and to be procured from the col- lector of internal revenue at or must convenient to the port of entry of said merchandise in the United States, and to be affixed under such reg- ulations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury shall prescribe; and on all articles of merchandise of United States manufacture coming into Porto Rico in addition to the duty above provided upon payment of a tax equal in rate and amount to the internal-revenue tax imposed in Porto Rico upon the like articles of Porto Rican manufacture: Provided, That on and after the date when this Act shall take effect, all merchandise and articles, except coffee, not dutiable under the tariff laws of the United States, aud all merchandise aud articles entered in Porto Rico free of duty un- der orders heretofore made by the Secretary of War, shall be admitted into tlie several ports thereof, when imported from the United States, free of duty, all laws or parts of laws to the contrary notwithstanding; and whenever the legislative assembly of Porto Rico shall have enacted and pnt into operation a system of hical taxation to meet the necessi- ties of the government of Porto Rico, by this act established, and shall by resolution duly passed so notify the President, he shall make proc- lamation thereof, and thereupon all tariif duties on merchandise and articles going into Porto Rico from the United States or coming into the United States from Porto Rico shall cease, and from and after such date all such merchandise and articles shall be entered at the several ports of entry free of duty; and in no event shall any duties be collected after the first day of March, nineteen hundred and two, on merchandise and articles going into Porto Rico from the United States or coming into the United States from Porto Rico. Sec. 4. That the duties and taxes collected in Porto Rico in pursu- ance of this Act, less the cost of collecting the same, and the gross amount of all collections of duties and taxes in the United States upon articles of merchandise coming from Porto Rico, shall not be covered into the general fund of the Treasury, but shall be held as a separate fund, and shall be placed at the disposal of the President to be used for the government and benefit of Porto Rico until the government of Porto Rico herein provided for shall have been organized, when all moneys theretofore collected under the provisions hereof, then unexpended, shall be transferred to the local treasury of Porto Rico, and the Secre- tary of the Treasury shall designate the several ports and sub-ports of entry into Porto Rico and shall make such rules and regulaticms and appoint such agents as may be necessary to collect the duties and taxes authoiized to be levied, collected, and paid in Porto Rico by the pro- visions of this Act, and he shall fix the compensation and provide for the payment thereof of all such officers, agents, and assistants as he may find it necessary to employ to carry out the provisions hereof; Provided, however, That as soon as a civil government for Porto Rico iNStlLAE CASES APPENDIX. 517 shall have been organized in accordance with the provisions of this Act and notice thereof shall have been given to the President he siiall make proclamation thereof, and thereafter all collections of duties and taxes in Porto Rico under the provisions of this Act shall be paid into the treasury of Porto Rico, to be expended as required by law for the gov- ernment and benefit thereof instead of being paid into the Treasury of the United States. Sec. 5. That on and after the day when this act shall go into effect all goods, wares, and merchandise previously imported from Porto Rico, for which no entry h:is been made, and all goods, wares, and merchan- dise previously entered without payment of duty and under bond for warehousing, transportation, or any other purpose, for which no permit of delivery to the importer or his agent has been issued, shall be sub- jected to the duties imposed by this Act, and to no other duty, upon the entry or the withdrawal thereof: Provided, That when duties are based upon the weight of merchandise deposited in any public or private bonded warehouse said duties shall be levied and collected upon the weight of such merchandise at the time of its entry. Sec. 38. That no export duties shall be levied or collected on exports from Porto Rico; but taxes and assessments on property, and license fees for franchises, privileges, and concessions may be imposed for tlie purposes of the insular and municipal governments, respectively, as may be provided and defined by act of the legislative assembly; and where necessary to anticipate taxes and revenues, bonds and other obli- gations may be issued by Porto Rico or any municipal government therein as may be provided by law to provide for expenditures autiior- ized by law, and to protect the public credit, and to reimbuise the United States for any moneys which have been or may be expended out of the emergency fund of the AVar Department for the relief of the indus- trial conditions of Porto Rico caused by the hurricane of August eighth, eighteen hundred and ninety-nine: Provided^ however, That no i)ublic indebtedness of Porto Rico or of any municipality thereof shall be au- thorized or allowed in excess of seven per centum of the aggregate tax valuation of its property. Executive Orders of the President as to Tariff in Porto Rioo. I, Executive Mansion, August 19, 1898. By virtue of the authority invested in me as Commander in Chief of the Army and Navy of the United States of America, I do hereby order and direct that upon the occupation and possession of any ports and any places in the island of Porto Rico by the forces of the United States the following tariff of duties and taxes to be levied and collected as a military contribution, and regulations for the administration thereof shall take effect and be in force in the ports and places so occupied. Questions arising under said tariff and regulations shall be decided by the general in command of the United States forces in that island. Necessary and authorized expenses for the administration of said tariff and regulations shall be paid from the collections thereunder. 518 TREATY-MAKING POWER OF THE U. S. Accurate accounts of collections and expenditures shall be kept and rendered to the Secretary of ^Va^. William McKinley. II. Executive Mansion, September 9th, 1898. Article XIV of customs tariff and regulations for ports in Porto Rico in possession of the United States is hereby amended so as to read as follows: Any goods, wares, and merchandise not duty entered for payment of duty within ninety days after importation shall be sold at auction, by order of the officer iu command of the United States forces, after five days' public notice conspicuously posted at the port, provided that the period of ninety days may be extended by said officer not exceeding a period of six months from the date of importation, when good and sufficient reasons therefor are presented to him, if, in liis judgment, the interests of the Government will permit such extension. The proceeds of such sale will be kept for ten days subject to the demand of the im- porter, after the deduction of the proper duties on the goods and all expenses of storage and sale. William McKinley. ni. Executive Mansion, January 20, 1899. By virtue of the authority vested in me as Commander in Chief of the Army and Navy of the United States of America, I do hereby order and direct that the following tariff of duties and taxes shall be levied and collected, and the regulations for the administration thereof shall take effect and be in force in all ports and places in the island of Porto Kico and all islands in the West Indies east of the 74th degree, west longitude, evacuated by Spain on and after February 1, 1899. All questions arising in the administration of customs shall be re- ferred to the collector at the port of San Juan for decision, and there shall be no appeal from such decisions except in cases vphere the col- lector may find it expedient to ask for special instructions of the War Department on the points involved. Necessary and authorized expenses for the administration of said tariff and regulations shall be paid from the collections thereunder. Accurate account of collections and expenditures shall be kept and rendered to the Secretary of War. William McKinley. CONSTITUTION OF THE UNITED STATES. We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Bless- ings of Liberty to ourselves and our Posterity, do ordain and estab- lish this CoNSTixrTiON for the United States of America. ARTICLE I. Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Section 2. i The House of Representatives shall be composed of Mem- bers chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. In May, 1785, a committee of Congress made a report recommending an alter- ation in the Articles of Coufederation, but no action was taken on it, and it was left to the State Legislatures to proceed in the matter. In Jaimary, 178G, the Leg- islature of Virginia passed a resolution providing for the appointment of five commissioners, who, or any three of them, should meet such commissioners as might be appointed in the other States of the Union, at a time and place to be agreed upon, to take into consideration the trade of the United States ; to con- sider how far a uniform system in their commercial regulations may be neces- sary to their common interest and their permanent harmony ; and to report to the several States such an act, relative to this great object, as, when ratified by them, will enable the United States in Congress effectually to provide for tlie same. The Virginia commissioners, after some correspondence, fixed the first Monday in September as the time, and the city of Annapolis as the place for the meeting, but only four other States were represented, viz : Delaware, New York, New Jersey, and Pennsylvania ; the commissioners appointed by Massachusetts, New Hampshire, North Carolina, and Rhode Island failed to attend. Under the circumstances of so partial a representation, the commissioners present agreed upon a report, (drawn by Mr. Hamilton, of New York,) expressing their unanimous conviction that it might essentially tend to advance tlie interests of the Union if the States by which they were respectively delegated would cori- cur, and use their endeavors to iirocure the concurrence of the other States, in the appointment of commissioners to meet at Philadelphia on the second Mon- day of May following, to take into consideration the situation of the United States; to devise such further provisions as should appear to them necessary to render the Constitution of the Federal Govcnnnent adequate to the exigencies of the Union; and to report such an art for that purpose to the UnitcMl States in 519 o20 TKEATY-.MAKlN(r POWER OF THE U. S. -No Person shall be a Representative who shall not have attained to the Age of twenty-live Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. 3* [Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.] The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to cbuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New- Congress assembled as, when agreed to by them and afterwards confirmed by the Legislatures of every State, would effectually provide for the same. Congress, on the 21st of February, 1787, adopted a resolution in favor of a con- vention, and the Legislatures of tliose States which had not already done so (with the exception of Rhode Island) promptly appointed delegates. On the 25th of May, seven States having convened, George Washington, of Virginia, was unanimously elected President, and the consideration of the proposed con- stitution was commenced. On the 17th of September, 1787, the Constitution as engrossed and agreed upon was signed by all the members present, except Mr. Gerry, of Massachusetts, and Messrs. Mason and Randolph, of Virginia. The president of the convention transmitted it to Congress, with a resolution stating how the proposed Federal Government should be put in operation, and an ex- planatoiy letter. Congress, on the 28th of September, 1787, directed the Con- stitution so framed, with the resolutions and letter concerning the same, to " be transmitted to the several Legislatures in order to he submitted to a convention of delegates chosen in each State by the people thereof, in conformity to the re- solves of the convention." On the 4th of March, 1789, the day which had been fixed for commencing the operations of Government under the new Constitution, it had been ratified by the conventions chosen in each State to consider it, as follows: Delaware, De- cember 7, 1787 ; Pennsylvania, December 12, 1787 ; New Jersey, December 18, 1787 ; Georgia, January 2, 1788 ; Connecticut, January 9, 1788 ; Massachusetts, Februaiy 6, 1788 ; Mary-land, April 28, 1788 ; South Carolina, May 23, 1788 ; New Hampshire, June 21, 1788; Virginia, June 26, 1788; and New York, July 26, 1788. The President informed Congi-ess, on the 28th of January, 1790, that North Carolina had ratified the Constitution November 21, 1780; and he informed Congress on the 1st of June, 1790, that Rhode Island had ratified the Constitu- tion May 29, 1789. Vermont, in convention, ratified the Constitution Janu- ary 10, 1791, and was, by an act of Congress approved February 18, 1791, "received and admitted into this Union as a new and entire member of the United States." * The clause included in brackets is amended by the 14th amendment, 2d sec- tion. (See p. 532, post.) CONSTITUTION OF THE UNITED STATES. 521 York six, New Jersey four, Pennsylvania eight, Delaware one, Mary- land six, Virginia ten, North Carolina five. South Carolina five, and Georgia three. * When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. ^Tlie House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. Skction 3. 1 The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator sliall have one Vote. 2 Immediately after they sliall be assembled in Consequence of the first Election, they shall be divided as equally as m;iy be into three Classes. Tlie Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expi- ration of the fourth Year, and of the third Class at tlie Expiration of the sixth Year, so that one-third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Re- cess of the Legislature of any State, tlie Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. 3 No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he sliall be chosen. * The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. ^The Senate shall chuse tlieir other Officers, and also a Presidentpro tempore, in the Absence of the Vice President, or when he shall exer- cise the Office of President of the United States. 6 The Senate shall have the sole Powei- to try all Impeachments. Wlien sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall pre- side: And no Person shall be convicted without the Concurrence of two thirds of the Members present. ■^ Judgment in Cases of Impeachment shall not extend furtlier than to removal from Office, and disqualification to hold and enjoy any Office of honor. Trust or Profit under the United States: but the Party con- victed shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section 4. i The Times, Phices and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but tlie Congress may at any time by Law mnke or alter such Regulations, except as to the Places of cliusing Senators. 2 The Congress shall assemble at least once in every Year, and such Meeting shall be on the fiist Monday in December, unless they shall by Law appoint a different Day. Section '>. ' Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall 5:22 TIIKATY-MAKINc; I'OWKll OF THE U. S. constitute a quorum to do business; but a smaller Number may adjourn from day to day. and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. -Earh House may determine the Rules of its Proceedings, punish its Members for disorderly' Behaviour, and, with the Concurrence of two thirds, expel a Member. ^Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judg- ment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. * Neither House, during the Session of Congress, shall, without the Consent of tlie other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section G. ^ The Senators and Representatives shall receive a Com- pensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Trea- son, Felony and Bi-each of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. ^No Senator or Representative shall, during the Time for which he was elected, be ajipointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments where- of shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. Section 7. ^ All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may proi)ose or concur with Amend- ments as on other Bills. 2 Every Bill which shall have passed the House of Representatives and tlie Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it sliall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. 8 Every Order, Resolution, or Vote to which the Concurrence of the CONSTITUTION OF THE UNITED STATES. 523 Senate and House of Representatives may be necessary (except on a question of Adjouinmeut) shall be presented to the PresicCent of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed iu the Case of a Bill. Section 8. The Congress shall have Power ^ To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; 2 To borrow Money on the credit of the United States; 8 To regulate Commerce with foreign Nations, and among the several States, and witli the Indian Tribes; *To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; ^To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; 6 To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; ■^To establish Post Offices and post Roads; 8 To promote the Progress of Science aud useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; 9 To constitute Tribunals inferior to the supreme Court; ^^To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; 12 To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; 13 To provide and maintain a Navy; i*To make Rules for the Government and Regulation of the land and naval Forces; 15 To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; i°To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Ser- vice of the United States, reserving to the States respectively, the Ap- pointment of the Officers, and the Authority of training the Militia ac- cording to the discipline prescribed by Congress; I'To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of partic- ular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of tiie State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock- Yards, and other needful Buildings; — And 18 To make all Laws which shall be necessary and proper for carrying 52-4 TREAT Y-MAKJ NO I'OWICR OF THE U. S. into Execution the foregoing Powers, and all other Powers vested by this Cunstftiitiou in the Government of the United States, or in any De- partment or Officer thereof. Section 9. ^The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be pro- hibited by the Congress prior to the Year one thousand eiglit hundred and eight, but a Tax or duty may be imposed on such Importation, not exceediug ten dollars for each Person. -The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Kebellion or Invasion the public Safety may re- quire it. 3 No Bill of Attainder or ex post facto Law shall be passed. * No Capitation, or other direct, tax shall be laid, unless in Propor- tion to the Census or Enumeration herein before directed to be taken. 5 No Tax or Duty shall be laid on Articles exijorted from any State. ^No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Ves- sels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. ■^ No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. *No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Section 10. ^ No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit: make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. 2 No State shall, without the Consent of the Congress, lay any Im- posts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Pioduce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Coiigress. * No State, shall without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into an Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. ARTICLE IL Section 1. ^ The executive Power sliall be vested in a President of the United States of America. He shall hold his Office during the Term CONSTITUTION OF THE UNITED STATES. 525 of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: 2 Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Sena- tors and Representatives to which the State may be entitled in the Con- gress: but no Senator or Kepresentative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. 3 The Congress may determine the Time of chusiug the Electors, and the Day on which they shall give their Votes; which day shall be the same throughout the United States. * No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligi- ble to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States. 5 In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for tlie Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer sliall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. « The President shall, at stated Times, receive for his Services, a Compensation, wliich shall neither be eucreased nor diminished during the Period for which he shall have been elected, and he shall not re- ceive within that Period any other Emolument from the United States, or any of them. ■^ Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: — "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Section 2. ^ The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opini(m, in writing, of tlie principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Im- peachment. 2 lie shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Con- sent of the Senate, shall appoint Ambassadors, other- public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, 02G TKEATY-MAKING I'OWEK OF THE U. S. in the Presideut aloue, iu the Courts of Law. or in the Heads of Depart- ments. 3 Tlie President shall have Power to fill up all Vacancies that may happen during the Kecess of the Senate, by granting Commissions which shall expire at the End of their next Session. Section 3. He shall from time to time give to the Congress Informa- tion of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and iu Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commis- sion all the Officers of the United States. Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ARTICLE IlL Section 1. The judicial Power of the United States, shall be vested in oue supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the su- preme and inferior Courts, shall hold their Offices during good Behav- iour, and shall, at stated Times, receive for their Services, a Compen- saticm, which shall not be diminished during their Continuance in Office. Section 2. ^Tlie judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controver- sies to which the United States shall be a Party; — to Controversies be- tween two or more States; — between a State and Citizens of another State; — between Citizens of different States, — between Citizens of tlie same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 2 In all Cases affecting Ambassadors, other public Ministers and Con- suls, and those in which aState shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. 8 The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall liave been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section 3. ^ Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on CONSTITUTION OF THE UNITED STATES. 527 the Testimony of two Witnesses to the same overt Act, or on Confes- sion in open Court. -The Congress shiill have Power to declare the Punishment of Trea- son, but no Attainder of Treason shall work Corruption uf Blood, or Forfeiture except during the Life of the Person attainted. ARTICLE IV. Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Sectiox 2. 1 The Citizens of each State shall be entitled to all Privi- leges and Immunities of Citizens in the several States. -A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall ou De- maud of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. 3 No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. Sections, i New States maybe admitted by the Congress into this Union; but no new State shall be formed or erected within the Juris- diction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Leg- islatures of the States concerned as well as of the Congress. 2 The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property be- longing to the United States; ami nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Section 4. The United States shall guarantee to every State in his Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against do- mestic Violence. ARTICLE V. The Congress, whenever two thirds of both Houses shall deem it nec- essary, shall propose Amendments to this Constitution, or, on the Ap- plication of the Legislatures of two tliirds of tlie several States, shall call a Convention for proposing Amendments, which, in eitlier Case, shall be valid to all Intents and Purposes, as Part of tliis Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that 528 TRKATY-MAKING POWER OF THE U. S. no Ameiulment whicli may be m;\de piior to the Year One thousand ^iglit humhed and eight sliall in any Manner affect the first and fourth Chiuses in the Ninth Section of the first Article; and tliat no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. ARTICLE VI. lAll Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. 2 This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land ; and the J udges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not- withstanding. 8 The Senators and Representatives before mentioned, and tbe Mem- bers of the several State Legislatures, and all executive and judicial Of- ficers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be lequired as a Qualification to any Office or public Trust under the United States. ARTICLE VII. Tlie Ratification of the Conventions of nine States, sliall be sufficient for the Establishment of this Constitution between the States so ratify- ing the Same. Done in Convention by the Unanimous Consent of the States present the Seventeentli Day of September in the Year of our Lord one thou- sand seven hundred and Eighty seven, and of the Independance of the United States of America the Twelfth. In Witness whereof We have hereunto subscribed our Names, Go. Washington — Presidt. and Deputy/ from Virginia. John Langdon, Nathaniel Gorham, Wm. Saml. Johnson, Alexander Hamilton. Wil: Livingston, David Brearley, New Hampshire. Massachusetts. Connecticut. Neio York. New Jersey. Nicholas Oilman. RuFus King. , Roger Sherman. Wm. Paterson, JoNA, Dayton. CONSTITUTION OF THE UNITED STATES. 529 Penn>fi/loania. B. Fr\nklin, KOBT. MoKUIS, TlIO: FiTZSIMONS, James Wilsojs^, Geo: Read, JoHX Dickinson, Jaco: Bkoom, James M' Henry, Danl, Carkoll. John Blair, Wm. Blount, Hu. Williamson. J. RUTLEDGE, CHARLEa PlNCKNEY, William Few, Attest: Thomas Mifflin", Geo: Clymer, Jared Ingersoll, Gouv: Morris. Delaware. Gunning Bedford, Jun'r, Richard Bassett. Maryland. Dan: of St. Thos. Jenifer. Virginia. James Madison, Jr. North Carolina. Rich'd Dobbs Spaight, South Carolina. Charles Cotesworth Pinckney, Pierce Butler. Georgia. Abr. Baldwin. WILLIAM JACKSON, Secretary. ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CON- STITUTION OF THE UNITED STATES OF AMERICA, PRO- POSED BY CONGRESS, AND RATIFIED BY THE LEGISLA- TUBES OF THE SEVERAL STATES PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION. (The first ten amendments to the Constitution of tlie United States were proposed to the legislatures of the several States by the First Congress, on the 2oth of September, 1789. They were ratified by the following States, and the notifications of ratification by the governors thereof were successively com- municated by the President to Congress: New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, Jaimaiy 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; Pennsylvania, March 10, 1790; New York, March 27, 1790; Rhode Island, June 15, 1790; Vermont, November 3, 1791; and Virginia, De- cember 15, 1791. There is no evidence on the journals of Congress that the legislatures of Connecticut, Georgia, and Massachusetts ratified them.) ARTICLE L Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the riglit of the people peaceably to assem- ble, and to petition the Government for a redress of grievances. 34 530 TEEATY-MAKING POWER OF THE U. S. ARTICLE II. A well regulated Militia, beiug necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be in- fringed. ARTICLE III. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. ARTICLE IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, sup- ported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ARTICLE V. No person shall be held to answer for a capital, or otherwise infa- mous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a wit- ness against himself, nor be dejirived of life, liberty, or property, with- out due process of law; nor shall private property be taken for public use, without just compensation. ARTICLE VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of C;ounsel for his defence. ARTICLE VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. ARTICLE VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. CONSTITUTION OF THE UNITED STATES. 531 ARTICLE IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage otliers retained by the people. ARTICLE X. The powers not delegated to the United States by the Constitution, nor proiiibited by it to the States, are reserved to the States respec- tively, or to the people. ARTICLE XI. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Suhjects of any Foreign State. (The eleventh amendment to the Constitution of the United States was pro- posed to the legislatures of the several States by the Third Congress, on the 5th September, 179i ; and was declared in a message from the President to Con- gress, dated the 8th of January, 1798, to have been ratified by the legislatm'es of three- fourths of the States.) ARTICLE XII. The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of wliom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the gov- ernment of the United States, directed to the President of the Senate; — The President of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;— The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such ma- jority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Repre- sentatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the repre- sentation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice- President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a ma- 532 TREATY-MAKING POWER OF THE U. S. jority, then fiDin the two highest uumbers on the list, the Senate shall choose tlie Vice-President; a quorum for the purpose sliall consist of two-thirds of tlie wliole number of Senators, and a majority of the whole number shall be necessary to a clioice. But no persou conatitu- tioaally ineligible to the ollice of President shall be eligible to that of Vice-President of the United States. (The twelfth amendment to the Constitution of the United States was pro- posed to the legislatures of the several States by the Eighth Congress, on the 12th of December, 1803, m lieu of the original third paragraph of the first sec- tion of the second article ; and was declared in a proclamation of the Secretary of State, dated the 25tli of September, 1804, to have been ratified by the legis- latures of three-fourths of the Slates.) ARTICLE XIII. Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly con- victed, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by ap- propriate legislation. (The thirteenth amendment to the Constitution of the United States was proposed to the legislatures of the several States by the Thirty-eighth Con- gress, on the 1st of February, 1865, and was declared, in a proclamation of the Secretary of State, dated the 18th of December, 1865, to have been ratified by the legislatures of twenty-seven of the thirty-six States, viz : Illinois, Rhode Island, Michigan, Maiyland, New York, West Vu-ginia, Maine, Kansas, Massa- chusetts, Pennsylvania, Virginia, Ohio, Missouri, Nevada, Indiana, Louisiana, Miimesota, Wisconsm, Vermont, Temiessee, Arkansas, Connecticut, New Hampshire, South Carolina, Alabama, North Carolina, and Georgia.) ARTICLE XIV. Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, lib- erty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives sliall be apportioned among the several States according to their respective numbers, counting the whole num- ber of persons in each State, excluding Indians not taxed. But wlien the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the pro- portion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. CONSTITUTION OF THE UNITED STATES. 533 Section 3. No person shall be a Sen ,tor or Representative in Con- gress, or elector of Presideat and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congi-ess, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Con- stitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, re- move such disability. Section 4. The validity of the public debt of the United States, au- thorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebel- lion against the United States, or any claim for the loss or emancipa- tion of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. CThe fourteenth amendment to the Constitution of the United States was proposed to the legislatures of tlie several States by the Thirty-ninth Congress, on the 16th of June, 186(5. On the 21st of July, 1868, Congress adopted and transmitted to the Department of State a concurrent resolution, declaring that " the legislatures of the States of Comiecticut, Temiessee, New Jersey, Oregon, Vermont, New York, Ohio, Illinois, West Virginia, Kansas, Mahie, Nevada, Missouri, Indiana, Minnesota, New Hampshire, Massachusetts, Nebraska, Iowa, Arkansas, Florida, North Carolina, Alabama, South Carolina, and Louisiana, heuig tliree-fourths and more of the several States of the Union, have ratified the fourteenth article of amendment to the Constitution of the United States, duly proposed by two-thirds of each House of the thirty-ninth Congress: There- fore Resolved, That said fourteenth article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State." The Secretary of State accordingly issued a proclama- tion, dated the 28th of July, 1868, declaring that the proposed fourteenth amend- ment had been ratified, in the maimer hereafter mentioned, by the legislatures of thirty of the thirty-six States, viz : Connecticut, .lime ."0, 1866 ; New Hamp- shire, July 7, 1866; Tennessee, July 19, 1866; New Jersey, September 11, 1866, (and the legislature of the same State passed a resolution in April, 1868, to withdraw its consent to it ;) Oregon, September 19, 1866 ; Vermont, November 9, 1866 ; Georgia rejected it November l.S, 1866, and ratified it July 21, 1868 ; North CaroliJia rejected it December 4, 1866, and ratified it July 4, 1868; South Caro- lina rejected it December 20, 1866, and ratified it July 9, 1868 ; New York rati- fied it January 10, 1867; Ohio ratified it .Tanuaiy 11, 1867, (and the legislature of the same State passed a resolution in .lanuary, 1868, to witlidraw its con.sent to it;) Illinois ratified it January 15, 1867; West Virginia, January 16, 1867; Kansas, January 18, 1867; Maine, January 19, 1867; Nevada, January 22, 1867; Missouri, January 26, 1867; Indiana, January 29, 1867; Minnesota, February 1, 1867; Rhode Island, February 7, 1867; Wisconsin, Folmiary 13, 1867; Pennsyl- vania, February 13, 1867 ; Michigan, February 15, 1867 ; Massachusetts, March 20, 1867; Nebraska, June 15, 1867; Iowa, April 3, 1868; Arkansas, April 6, 1868; Florida, June 9, 1868 ; Louisiana, July 9, 1868 ; and Alabama, July 13, 1868, -)o4 TREATY-MAKING PCAVER OF THE U. S. Ceorgia again ratified the ainendmcnt February 2, 1870. Texas rejected it No- vember 1, ISGG, and laitilied it F(>bruary 18, 1870. Virginia rejected it January 19, 18li7, and ratified October 8, 1809. The amendment was rejected by Kentucky January 10, 18t37 ; by Delaware February 8, 18G7 ; by Maryland March 23, 18G7 ; and was not afterward ratified by either State.) ARTICLE XV. Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on ac- count or race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. (The fifteenth amendment to the Constitution of the United States was pro- posed to tlie legislatui-es of the several States by the Fortieth Congress on the 27th of February, 1869, and was declared, in a proclamation of the Secretaiy of State, dated March 30; 1870, to have been ratified by the legislatures of twenty- nine of the thirty-seven States. The dates of these ratifications (arranged in the order of their reception at the Department of State) were : from North Carolina, March 5, 1869 ; West Virginia, March 3, 1869 ; Massachusetts, March 9-12, 1869 ; "Wisconsm, March 9, 1869; Mame, March 12, 1869; Louisiana, March 5, 1869; Michigan, March 8, 1869; South Carolina, March 16, 1869; Pennsylvania, March 26, 1869 ; Arkansas, March 30, 1869 ; Connecticut, May 19, 1869 ; Florida, June 15, 1869 ; Illinois, March 5, 1869 ; Indiana, May 13-14, 1869 ; New York, March 17-April 14, 1869, (and the legislature of the same State passed a resolu- tion January 5, 1870, to withdraw its consent to it;) New Hampshire, July 7, 1869; Nevada, March 1, 1869; Vermont, October 21, 1869; Virginia, October 8, 1869; Missouri, January 10, 1870; Mississippi, January 15-17, 1870 ; Ohio, Janu- ary' 27, 1870; Iowa, February 3, 1870; Kansas, January, 18-19, 1870 ; Minnesota, February 19, 1870; Rhode Island, January 18, 1870; Nebraska, February 17, 1870 ; Texas, February 18, 1870. The State of Georgia also ratified the amend- ment February 2, 1870.) ANALYSIS AND CLASSIFICATION OF CASES CITED IN BRIEFS, ARGUMENTS AND OPINIONS IN IN- SULAR CASES. There were about three hundred cases cited in the briefs, arguments and opinions in the Insular Cases, (exclusive of those lelating to the form of action, construction of the Customs Administrative Act as to procedure, and to the Jurisdiction of United States Circuit Courts and the United States Court of Claims). An effort has been made to classify the cases cited on constitutional points under the following headings (for a consecutive list of these headings I-XXV, see Table of Contents of Insular Cases, pp. 462, 463, ante. ) The analysis is necessarily imperfect, many of the cases having been cited on so many points that it has been impossible to make a perfect classification. I. Nationality and Sovereignity of the United States and Sover- eign Powers of Central Government. Ableman vs. Booth, U. S. Sup. Ct. 1858, 21 Howard, 506, Taney, Ch. J. American Ins. Co. vs. Canter {Florida Case), U. S. Sup. Ct. 1828, 1 Peters, 511, Marshall, Ch. J. Ainy Warwick, The, U. S. Dist. Ct. Mass. 1862; 2 Sprague, 123, 150, Sprague, J. Antelope, The, U. S. Sup. Ct. 1825, 10 Wheaton, 66, Marshall, Ch. J. Barron vs. Baltimore, U. S. Sup, Ct. 1833, 7 Peters, 243, Marshall, Ch. J. Briscoe vs. Bank, U. S. Sup. Ct. 1837, 11 Peters, 257, McLean, J. Buckner vs. Finley, U. S. Sup. Ct. 1829, 2 Peters, 586, Washington, J. Chae Chan Ping vs. United States [Chinese Exclusion Case), U. S. Sup. Ct. 1889, 1,30 U. S. 581, Field, J. Charkieh, The, High Court of Adm. 1873, L. R., 4 A & E. 59, and Cor- bett's Cas. Int. Law, p. 9, Sir Roi5ert Phillimoke. Chew Heong vs. United States, U. S. Sup. Ct. 1884, 112 U. S. 536, Har- lan, J. Chicago, etc., Ry. Co. vs. Toinpkins, U. S. Sup. Ct. 1900, 176 U. S. 167, Brewek, J. Chisholm vs. Georgia, U. S. Sup. Ct. 1793, 2 Dallas, 419, Jay, Ch. J., Iredell, Blair, Wilson, Gushing, JJ. Cohens vs. Virginia, U. S. Sup. Ct. 1821, Wheaton, 264, Marshall, Ch. J. Coleman vs. Tennessee, U. S. Sup. Ct. 1878, 97 U. S. 509, Field, J. 535 Oob TREATY-MAlvING POWER OF THE U. S. Cooper, In rr, {Bernvi Sea Cases) U. S. Sup. Ct. 1891, 138 U. S. 404, anil 1892, 14:5 U. S. 472, Fuller, Ch. J. Crandall vs. Nevada, U. S. Sup. Ct, 18G7, G Wallace, 35, Miller, J. Debs, In re, U. S. Sup. Ct. 1895, 158 U. S. 564, Bkewkr, J. Dodije vs. Woolsey, U. S. Sup. Ct. 1855, 18 Howaid, 3:51, Wayne, J. Bow V. Johnson, U. S. Sup. Ct. 1879, 100 U. S. 158, Field, J. Ekiit, yishimnra, vs. United States, U. S. Sup. Ct. 1891, 142 U. S. 651, Gray, J. Exchange, Schooner, vs. McFadden, U. S. Sup. Ct. 1812, 7 Cranch, 116, Marshall, Ch. J. Fowj Yiie Ting vs. United States {Chinese Exclusion Case), U. S. Sup. Ct. 1893, 149 U. S. 698, Gray. J. Georgia vs. Stanton, U. S. Sup. Ct. 1867, 6 Wallace, 50, Nelson, J. Gibbons vs. Ogden, U. S. Sup. Ct. 1824, 9 Wheaton, 1, Marshall, Ch. J. Gibbons vs. United States, U. S. Sup. Ct. 1868, 8 Wallace, 269, Mil- ler, J. GilmanYS. Philadelphia, U. S. Sup. Ct. 1865, 3 Wallace, 713, Swayne, J. Humilton vs. I)illi7i, U. S. Sup. Ct. 1874, 21 Wall. 73, Bradley, J. Hepburn vs. Grisioold, U. S. Sup. Ct. 18G9, 8 Wallace, 603, Chase, Ch. J. Jones vs. United States {Navassa Islands Case), U. S. Sup. Ct. 1890, 137 U. S. 202, Gray, J. Kennettvs. Chambers, U. S. Sup. Ct, 1852, 14 Howard, 38, Taney, Ch. J. Kilbourn vs. Thompson, U. S. Sup. Ct. 1880, 103 U. S. 168, Miller, J, Lane vs. Oregon, U. S. Sup. Ct. 1868, 7 Wallace, 71, Chase, Ch. J. Legal Tender Cases, U. S. Sup. Ct. 1869, 8 AVallace, 603, Chase, Ch.- J,; 1870, 12 Wallace, 457, Strong, J.; 1884, 110 U. S. 421, Gray, J. Livingstone vs. Moore, U. S. Sup. Ct. 18-33, 7 Peters, 469, Johnson, J. Luther vs. Borden, U. S. Sup. Ct. 1849, 7 Howard, 1, Taney, Ch. J. McCulloch vs. Maryland, U. S, Sup. Ct. 1819, 4 Wheaton, 316, Mar- shall, Ch. J. McBaniel vs. McMeekin, Ct. of App. So. Car. 1834, 2 Hill S. C. Law, Part I, p. 1, O'Neall, Johnson, Harper, JJ. McPherson vs. Blacker, U. S. Sup. Ct. 1892, 146 U. S. 1, Fuller, Ch. J. Marbury vs. Madison, U. S. Sup. Ct. 1803, 1 Cranch, 137, Marshall, Ch. J. Martin vs. Waddell, U. S. Sup. Ct. 1842, 16 Peters, 367, Taney, Ch. J. Miller vs. United States, U. S. Sup. Ct. 1870, 11 Wallace, 268, Strong, J. Mormon Church vs. United States, U. S. Sup. Ct. 1890, 136 U. S. 1, Bradley, J. Munn vs. Illinois, U. S. Sup. Ct. 1876, 94 U. S. 113, Waite, Ch. J. Neagle, In re, U. S. Sup. Ct. 1890, 135 U. S. 1, Miller, J. Nexo Orleans vs. United States, U. S. Sup. Ct. 1836, 10 Peters, 662, McLean, J. Penhalloio vs. Doane, U. S. Sup. Ct. 1795, 3 Dallas, 54, Paterson, Blair, Gushing, JJ. Phillips vs. Payne, U. S. Sup. Ct. 1875, 92 U. S. 130, Swayne, J. Priggvs. Pennsylvania (Fugitive Slave Law Case), U. S. Sup. Ct. 1842, 16 Peters, 539, Story, J. INSULAR CASES APPENDIX. 537 Quarles, In re, U. S. Sup. Ct. 1895, 158 U. S. 532, Gray, J. Republic vs. Sweers, Sup. Ct. Peana. 1779, 1 Dallas, 45, McKean, Ch. J. Rhode Island vs. Massachusetts, U. S. Sup. Ct. 1838, 12 Peters, 657, Baldwin, J. Rose vs. Himeley, U. S. Sup. Ct. 1808, 4 Crancli, 241, Marshall, Ch. J. Ross, In re, U. S. Sup. Ct. 1891, 140 U. S. 453, Field, J. Scott vs. Sandford {Bred Scott Case), U. S. Sup. Ct. 1857, 19 Howard, 393, Taney, Ch. J. Siebold, Ex parte, U. S. Sup. Ct. 1879, 100 U. S. 371, Bradley, J. Slaughterhouse Cases, U. S. Sup. Ct. 1872, 16 Wallace, 36, Miller, J. Swan, The, U. S. Dist. Ct. Washington, 1892, 50 Fed. Rep. 108, Han- ford, J. Tennessee vs. Davis, U. S. Sup. Ct. 1879, 100 U. S. 257, Strong, J. Texas vs. White, U. S. Sup. Ct. 1868, 7 Wallace, 700, Chase, Ch. J. United States vs. Holliday, U. S. Sup. Ct. 1865, 3 Wallace, 407, Mil- ler, J. United States vs. Palmer, U. S. Sup. Ct. 1818, 3 Wheaton, 610, Mae- shall, Ch. J. United States vs. Williams, U. S. Dist. Ct. Penna. 1852, Fed. Cas. 16,705, 4 Hall's Am. L. J. 486, Kane, J. United States vs. Yorba, U. S. Sup. Ct. 1863, 1 Wallace, 412, Field, J. Ware vs. Hylton, U. S. Sup. Ct. 1796, 3 Dallas, 199, Chase, Wilson, Paterson, Gushing, Iredell, JJ. Williams vs. Suffolk Ins. Co., U. S. Sup. Ct. 1839, 13 Peters, 415, Mc- Lean, J. Wong Wing vs. United States, U. S. Sup. Ct. 1896, 163 U. S. 228, Shiras, J. II. Power of United States to Acquire Territory. American Ins. Co. vs. Canter (Florida Case), U. S. Sup. Ct. 1828, 1 Peters, 511, Marshall, Ch. ,J. Boj/d y, U. S. Sup. Ct. 1898, 169 U. S. 2G4, Shiras, J. Thompson vs. Utah, U. S. Sup. Ct. 1898, 170 U. S. 343, Harlan, J. 540 treaty-makinct power of the u. s. United States vs. Forty-three Gallons, etc., U. S. Sup. Ct. 1876, 93 U. S. 188, Davis, J., and 1883, 108 U. S. 491, Field, J. United States vs. Gratiot, U. S. Sup. Ct. 1840, 14 Peters, 526, Thomp- son, J. United States vs. Eagama, U. S. Sup. Ct. 188G, 118 U. S. 375, Millek, J. United States vs. T/ie Nancy, U. S. Cir. Ct. Penua. 1814, 3 Wash. 281, Washington, J. Webster vs. Beid, U. S. Sup. Ct. 1850, 11 Howard, 437, McLean, J. IV. Status of the District of Columbia. Barnes vs. District of Columbia, U. S. Sup. Ct. 1875, 91 U. S. 542, Hunt, J. Barney vs. Baltimore City, U. S. Sup. Ct. 1867, 6 Wallace, 280, Mil- ler, J. Callan vs. Wilson, U. S. Sup. Ct. 1887, 127 U. S. 540, Harlan, J. Capital Traction Co. vs. Hof, U. S. Sup. Ct. 1899, 174 U. S. 1, Gray, J. Geofroy vs. Riggs, U. S. Sup. Ct. 1890, 133 U. S. 258, Field, J. Gibbons vs. District of Columbia, U. S. Sup. Ct. 1886, 116 U. S. 404, Gray, J. Hepburn vs. Ellzey, U. S. Sup. Ct. 1805, 2 Crancli, 445, Marshall, Cli. J. Hooe vs. Jamieson, U. S. Sup. Ct. 1897, 166 U. S. 395, Fuller, Ch. J. Kendall vs. United States, U. S. Sup. Ct. 1838, 12 Peters, 524, Thomp- son, J. Lougborough vs. Blake, U. S. Sup. Ct. 1820, 5 Wheaton 317, Mar- shall, Ch. J. Mattingly vs. District of Columbia, U. S. Sup. Ct. 1878, 97 U. S. 687, Strong, J. Metropolitan R. R. Co. vs. District of Columbia, U. S. Sup, Ct. 1889, 132 U. S. 1, Bradley, J. Stoutenbergh vs. Hennick, U. S. Sup. Ct. 1889, 129 U. S. 141, Ful- ler, Ch. J. V. Construction of the Constitution of the United States. Boyd vs.United, U. S. Sup. Ct. 1886, 116 U. S. 616, Bradley, J. Ckisholm vs. Georgia, U. S. Sup. 1793, 2 Dallas, 419, ,Jay, Ch. J., Ire- dell, Blair, Wilson, Gushing, J J. Brownvs. Maryland, U. S. Sup. Ct. 1827, 12 Wheaton, 419, Marshall, Ch. J. Cohens vs. Virginia, U. S. Sup. Ct. 1821, 6 Wheaton, 264, Marshall, Ch. J. County of Wilson vs. National Bank, U. S. Sup. Ct. 1880, 103 U. S. 770, Wood, J. Dartmouth College vs. Woodwcird, U. S. Sup. Ct. 1819, 4 Wheaton, 518, Marshall, Ch. J. Field vs. Clark, U. S. Sup. Ct. 1892, 143 U. S. 649, Harlan, J. Fletcher vs. Peck, U. S. Sup. Ct. 1810, 6 Cranch 87, Marshall, Ch. J. INSULAR CASES APPENDIX. 641 Genessee Chief, The, U. S. Sup. Ct. 1851, 12 Howard, 443, Taney, Ch. J. Gibbons vs. Ogden, U. S. Sup. Ct, 1824, 9 Wheaton, 1, Marshall, Ch. J. Hepburn vs. Griswold, {Legal Tender Case) U. S, Sup. Ct. 1869, 8 Wal- lace, 603, Chase, Cli. J. Interstate Com. Coinni. vs. Brhnson, U. S. Sup. Ct. 1894, 154 U. S. 447, Harlan, J. Johnson\s. Mcintosh, U. S. Sup. Ct. 1823, 8 Wheaton, 543, Marshall, Ch. J. Kennard vs. Louisiana, U. S. Sup. Ct. 1875, 92X7. S. 480, Waite, Ch. J. Knowlton vs. Moore ( War Revenue Inheritance Tax Case), U. S. Sup. Ct. 1900, 178 U. S. 41, White, J. McCulioch vs. Maryland, U. S. Sup. Ct. 1819, 4 Wheaton 316, Mar- shall, Ch. J. McPherson vs. Blacker, U. S. Sup. Ct. 1892, 146 U. S. 1, Fuller, Ch. J, Marbury vs. Madison, U. S. Sup. Ct. 1803, 1 Cranch, 137, Marshall, Ch. J. Milligan, Ex parte, U. S. Sup. Ct. 1866, 4 Wallace, 2, Davis, J. Missouri vs. Lewis, U. S. Sup. Ct. 1879, 101 U. S. 22, Bradley, J. Monongahela Nav. Co. vs. United States, U. S. Sup. Ct. 1893, 148 U. S. 312, Brewer, J. Mormon Church vs. United States, IT. S. Sup. Ct. 1890, 136 U. S. 1, Bradley, J. MurpMjvs. Bamsey, U. S. Sup. Ct. 1885, 114 U. S. 15, Matthews, J. Neely vs. Henkel, U. S. Sup. Ct. 1901, 180 U. S. 109, Harlan, J. New York vs. Miln [Passenger Case), U. S. Sup. Ct. 1837, 11 Peters, 102, Barbour, J. Permolivs. Municipality, U. S. Sup. Ct. 1845, 3 Howard, 589, Cat- ron, J. Pollock vs. Farmers' L. & T. Co. (Income Tax Case), V. S. Sup. Ct. 1895, 157 U. S. 429, Fuller, Ch. J. Prigg vs. Pennsylvania {Fugitive Slave Law Case), U. S. Sup. Ct. 1842, 16 Peters, 539, Story, J. Robertson vs. Baldwin, U. S. Sup. Ct. 1897, 165 U. S. 275, Brown, J. Ross, In re, U. S. Sup. Ct. 1891, 140 U. S. 453, Field, J. Scott vs. Sandford {Bred Scott Case), U. S. Sup. Ct. 1857, 19 Howard, 393, Taney, Cli. J. Shively vs. Bowlby, U. S. Sup. Ct. 1894, 152 U. S. 1, Gray, J. Slaughterhouse Cases, U. S. Sup. Ct. 1872, 16 Wallace, 36, Miller, J. Stuart vs. Laird, U. S. Sup. Ct. 1803, 1 Cranch, 299, Patekson, J. Texas vs. White, U. S. Sup. Ct. 1868, 7 Wallace, 700, Chase, Ch. J. United States vs. Joint Traffic Ass'n., U. S. Sup. Ct. 1898, 171 U. S. 505, Pkckham, J. United States vs. Wong Kim Ark, {Chinese Baby Case) U.S. Sup. Ct. 1898, 169 U. S. 649, Gray, J. Ware vs. Hylton, U. S. Sup. Ct 1796, 3 Dallas, 199, Chase, Wilson, Paterson, Cushing, Iredioll, ,JJ. Yick Wo vs. Hopkins, U. S. Sup. Ct. 1886, 118 U. S. 356, Matthews, J. 542 TREATY-MAKING POWER OF THE U. S. VI. Division of Sovereignty Between the Federal Government and State Governments. Ableryian vs. Booth, U. S. Sup. Ct. 1858, 21 Howard, 506, Taney, Cb. J. Chae Chan Ping vs. United States {Chinese Exclusion Case), U. S. Sup. Ct. 1889, 130 U. S. 581, Field, J. Chew Heowj vs. United States, U. S. Sup. Ct. 1884, 112 U. S. 536, Har- lan, J. Chisholm. vs. Georgia, U. S. Sup. Ct. 1793, 2 Dallas, 419, Jay, Ch. J., Iredell, Blair, Wilson, Gushing, J J. Cohens vs. Virginia, U. S. Sup. Ct. 1821, 6 Wheaton, 264, Marshall, Ch. J. Coleman vs. Tennessee, U. S. Sup. Ct. 1878, 97 U. S. 509, Field, J. Cook vs. United States, U. S. Sup. Ct. 1891, 138 U. S. 157, Harlan, J. Cooley vs. Board of Port Wardens, U. S. Sup. Ct, 1851, 12 Howard, 299, Curtis, J. Crutc.her vs. Kentucky, U. S. Sup. Ct. 1891, 141 U. S. 47, Bradley, J. Dartmouth College vs. Woodward, U. S. Sup. Ct. 1819, 4 Wheaton, 518. Marshall, Ch. J. Eiuert vs. Missouri, U. S. Sup. Ct. 1894, 156 U. S. 296, Gray, J. Georgia vs. Stanton, U. S. Sup. Ct. 1867, 6 Wallace, 50, Nelson, J. Gibbons vs. Ogden, U. S. Sup. Ct. 1824, 9 Wheaton, 1, ^Marshall, Ch. J. Gibbons vs. United States, U. S. Sup. Ct. 1868, 8 Wallace, 269, Mil- ler, J. Gillespie vs. Winberg, N. Y. Ct. Com. Pleas, 1872, 4 Daly, 318, Daly, Ch. J. Gilman vs. Philadelphia, U. S. Sup. Ct. 1865, 3 Wallace, 713, Swayxe J. Grlswold vs. Atlantic Bock Co., N. Y. Sup. Ct. I8o5, 21 Baibour, 225, Strong, J. Interstate Commerce Comm. vs. Brimson, U. S. Sup. Ct. 1894, 154 U. S. 447, Harlan, J. Kilbourn vs. Thompson, U. S. Sup. Ct. 1880, 103 U. S. 168, Miller, J. Lane vs. Oregon, U. S. Sup. Ct. 1868, 7 Wallace, 71, Chase, Ch. J. Livingstone vs. Moore, U. S. Sup. Ct. 1833, 7 Peters, 4G9, Johnson, J. Loan Ass'n vs. Topeka, IT. S. Sup. Ct. 1874, 20 Wall. 655, Miller, J, McCalioch vs. Maryland, U. S. Sup. Ct. 1819, 4 Wheaton, 316, Mar- shall, Ch. J. McNeil, Ex parte, U. S. Sup. Ct. 1871, 13 Wallace, 236, Swayne, J. Martin vs. Waddell, U. S. Sup. Ct. 1842, 16 Peters, 367, Taney, Ch. J. Maxwell vs. Dow, U. S. Sup. Ct. 1900, 176 U. S. 581, Peckham, J. May vs. New Orleans, U. S. Sup. Ct. 1900, 178 U. S. 496, Harlan, J. Milligan, Ex parte, U. S. Sup. Ct. 1866, 4 Wallace, 2, Davis, J. Minor vs. Happtrsett [Woman^s Rights Case), U. S. Sup. Ct. 1874, 21 Wallace, 162, Waite, Ch. J. Munn vs. Illinois, U. S. Sup. Ct. 1876, 94 U. S. 113, Waite, Ch. J. jSfew Hampshire vs. Louisiana, U. S. Sup. Ct. 1883, 108 U. S. 76, Waite, Ch. J. INSU1.AR CASES APPENDIX. 643 New Orleans vs. United States, U. S. Sap. Ct. 1836, 10 Peters, 662, McLean, J. New Yo7'k vs. Miln (Passenger Case) U. S. Sup. Ct. 1837, 11 Peters, 102, Barbour, J. O'Neill vs. Vermont, U. S. Sup. Ct. 1892, 144 U. S. 323, Blatch- PORD, J. Penhullow vs. Boane, U. S. Sup. Ct. 1795, 3 Dallas, 54, Blair, Pater- son, CUSHING, J.T. Permoli vs. Municipality, U. S. Sup. Ct. 1845, 3 Howard, 589, Cat- ron, J. Pervear vs. Commonwealth, U. S. Sup. Ct. 1866, 5 Wallace, 475, Chase, Ch. J. Prigg vs. Pennsylvania [Fugitive Slave Law Case), U. S. Sup. Ct. 1842, 16 Peters, 539, Story, J. Reimblica vs. Sweers, Sup. Ct. Penna. 1779, 1 Dallas, 45, McKean, Ch. J. Shanks vs. Dupont, V. S. Sup. Ct. 1830, 3 Peters, 242, Story, J. Siebold, Ex parte, U. S. Sup. Ct. 1879, 100 U. S. 371, Bradley, J. Slaughterhouse Cases, U. S. Sup. Ct. 1872, 16 Wallace, 36, Miller, J. Spies vs. Illinois (Chicago Anarchist Case), U. S. Sup. Ct. 1887, 123 U. S. 131, Waite, Ch. J. Tennessee vs. Davis, U. S. Sup. Ct. 1879, 100 U. S. 257, Strong, J. Texas vs. White, U. S. Sup. Ct. 1868, 7 Wallace, 700, Chase, Ch. J. United States vs. Osborne, U. S. Dist, Ct. Oregou, 1880, 6 Sawyer, 406, Deady, J. United States vs. Joint Traffic Ass'n, U. S. Sup. Ct. 1898, 171 U. S. 505, Peckham, J. United States vs. Wong Kim Ark (Chinese Baby Case), U. S. Sup. Ct. 1898, 169 U. S. 649, Gray, J. Vance vs. Vandercook Co., U. S. Sup. Ct. 1898, 170 U. S. 438, White, J. Walker vs. Saumnet, U. S. Sup. Ct. 1875, 92 U. S. 90, Waite, Ch. J. Wood vs. Wood, Sup. Ct. Arkansas, 1891, 54 Ark. 172, Hemingway, J. VII. Separate Departments of the Government of the United States, Executive, Legislative and Judicial, and the functions of each. Am,iable Isabella, The, U. S. Sup. Ct. 1821, 6 Wheaton, 1, Story J. Castro vs. DeUriarte, U. S. Dist. Ct. S. D. N. Y. 1883, 16 Fed. Rep. 93, Brown, J. Chae Chan Ping vs. United States, (Chinese Exclusion Case), U. S. Sup. Ct. 1889, 130 U. S. 581, Field, J. Chew Heong vs. United States, U. S. Sup. Ct. 1884, 112 U. S. 536, Harlan, J. Chouteau vs. Eckhart, U. S. Sup. Ct. 1844, 2 Howard, 344, Catron, J. Clinton Bridge, The, U. S. Cir, Ct. Iowa, 1867, 1 Woolworth, 150, Mil- ler, J. Coffee vs. Groover, U. S. Sup. Ct. 1887, 123 U. S. 1, Bradley, J. In re Cooper, (Behring Sea Cases), U. S. Sup. Ct. 1891, 138 U. S. 404; and 1892, 143 U. S. 472, Fuller, Ch. J. 544 TKEATY-MAKESTG POWER OF THE U. S. Dodge vs. Wuolscy, U. S. Sup. Ct. 1855, 18 Howard, 031, Wayne, J. Fitld vs. Clark, U. S. Sup. Ct. 1S'J2, 143 U. S. G49, Haklan, J. Foater vs. NeiLson, U. S. Sup. Ct. 1»29, 2 Peters, 253, Maksuall, Ch. J. Frelin(jlni!/fien vs. Key, U. S. Sup. Ct. 1884, 110 U. S. G3, Waitk, Ch. J. Garcia, vs. Lee, U. S. Sup. Ct. 1838, 12 Peters, 511, Tanky, CMi. J. Georyia vs. Stanton, U. S. Sup. Ct. 18G7, 6 Wallace, 50, Nelson, J. Great W'entern Ins. Co. vs. United States, U. S. Sup. Ct. 1884, 112 U. S. 193, MlLLEK, J. Head Money Cases, U. S. Sup. Ct. 1884, 112 U. 8. 580, Miller, J. Holmes vs. Jennison, U. S. Sup. Ct. 1840, 14 Peters, 540, Thompson, J. Jones vs. United States, U. S. Sup. Ct. 1890, 137 U. S. 202, Gkay, J. Kansas Indians, The, U. S. Sup. Ct. 18(56, 5 Wallace, 737, Davis, J. Kennett vs. Chambers, U. S. Sup. Ct. 1852, 14 Howard, 38, Taney, Ch. J. Luther vs. Borden, U. S. Sup. Ct. 1849, 7 Howard, 1, Taney, Ch. J, McPherson vs. Blacker, U. S. Sup. Ct. 1892, 146 U. S. 1, Fulleb, Ch. J. Marbury vs. Madison, U. S. Sup. Ct. 1803, 1 Cranch, 137, Marshall, Ch. J. Miller vs. United States, U. S. Sup. Ct. 1870, 11 Wallace, 268, Strong, J. Mormon Church vs. United States, U. S. Sup. Ct. 1890, 136 U. S. 1, Bradley, J. Morrill vs. Jones, U. S. Sup. Ct. 1882, 106 U. S. 466, Waite, Ch. J. Munn vs. Illinois, U. S. Sup. Ct. 1876, 94 U. S. 113, Waite, Ch. J. Neeley vs. Henkel, U. S. Sup. Ct. 1901, 180 U. S. 109, Harlan, J. Phillips vs. Payne, U. S. Sup. Ct. 1875, 92 U. S. 130, Swayne, J. Pollard's Heirs vs. Kibbe, U. S. Sup. Ct. 1840, 14 Peters, 353, Thomp- son, J. Pollock vs. Farmers' L. & T. Co., (Income Tax Case), U. S. Sup. Ct. 1895, 157 U. S. 429, Fuller, Ch. J. Rhode Island vs. Massachusetts, U. S. Sup. Ct. 1838, 12 Peters, 657, Baldwin, J. Rose vs. Himeley, U. S. Sup. Ct. 1808, 4 Cranch, 241., Marshall, Ch. J. Taylor vs. Morton, U. S. Cir. Ct. Mass. 1855, 2 Curtis, 454, Curtis, J., (aff'd U. S. Sup. Ct. 1862, 2 Black, 481, Clifford, J.). United States vs. Holliday, U. S. Sup. Ct. 1865, 3 Wallace, 407, Mil- ler, J. United Statesvs. Johnson, U. S. Sup. Ct. 1888, 124 U. S. 236, Harlan, J. United States vs. Palmer, U. S. Sup. Ct. 1818, 3 Wheaton, 610, Mar- shall, Ch. J. United Statesvs. Rauscher, U. S. Sup. Ct. 1886, 119 U. S. 407, Miller, J. United States vs. Reynes, U. S. Sup. Ct. 1850, 9 Howard, 127, (cited as 50 U. S.) Daniel, J. United States vs. Yorba, U. S. Sup. Ct. 1863, 1 Wallace. 412, Field, J. Whitney vs. Robertson, U. S. Sup. Ct. 1888, 124 U. S. 190, Field, J. Whiton vs. Albany County Ins. Co., Sup. Ct. Mass. 1871, 109 Mass. 24, Gray, J. INSULAR CASES APPENDIX. 545 Williams vs. Suffolk Ins. Co., U. S. Sup. Ct. 1839, 13 Peters, 415, Mo- Lean, J. VIII. Powers of the Judicial Department of the United States Gov- ernment, Including those of Territorial Courts. American Ins. Co. vs. Canter {Florida Case), U. S. Sup. Ct. 1828, 1 Peters, 511, Marshall, Ch. J. American Publishiwj Co. vs. Fisher, U. S. Sup. Ct. 1897, 166 U. S. 464, Brewer, J. Amy Warwick, The, U. S. Dist. Ct. Mass. 1862, 2 Sprague, 123, 150, Sprague, J. Castro vs. DeUriarte, U. S. Dist. Ct. S. D. N. Y. 1883, 16 Fed. Rep. 93, Brown, J. Clawson vs. United States, U. S. Sup. Ct. 1885, 114 U. S. 477, Blatch- ford, J. Clinton vs. Enylebrecht, U. S. Sup. Ct. 1871, 13 Wallace, 434, Chase, Ch. J. Charkieh, The, High Ct. of Adm. 1873, 4 L. R. A. & E. 59, aud Cob- bett's Cas. Int. Law, p. 9, Sir Robert Phillimoke. Cridkshunk vs. Bidmell, U. S. Sup. Ct. 1900, 176 U. S. 73, Fuller, Ch. J. Debs, In re, U. S. Sup. Ct. 189.5, 158 U. S. 564, Brewer, J. Genessee Chief, The, U. S. Sup. Ct. 1851, 12 Howard, 443, Taney, Ch. J. Godson vs. United States, Sup. Ct. Oklahama, 1898, Burford, Ch. J. Good vs. Martin, U. S. Sup. Ct. 1877, 95 U. S. 90, Clifford, .J. Grapeshot, The, U. S. Sup. Ct. 1869, 9 Wallace, 129, Chase, Ch. J. Jecker vs. Montgomery, U. S. Sup. Ct. 1851, 13 Howard, 498, Taney, Ch. J. Lascelles vs. Bidwell, U. S. Cir. Ct. S. D. N. Y. 1900, 102 Fed. Rep. 1004, Lacombe, J. Leitensdorfer vs. Webb, U. S. Sup. Ct. 1857, 20 Howard, 176, Dan- iel, J. Lyons vs. Woods, U. S. Sup. Ct. 1894, 153 U. S. 649, Fuller, Ch. J. McAllister vs. United States, U. S. Sup. Ct. 1891, 141 U. S. 174, Har- lan, J. Marbury vs. Madison, U. S. Sup. Ct. 1803, 1 Cranch, 137, Marshall, Ch. J. Milllrjan, Ex parte, U. S. Sup. Ct. 1866, 4 Wallace, 2, Davis, J. Missouri vs. Lewis, U. S. Sup. Ct. 1879, 101 U. S. 22, Bradley, J. Neaijle, In re, U. S. Sup. Ct. 1890, 135 U. S. 1, Miller, J. Ortiz, Ex parte, U. S. Cir. Ct. Minn. 1900, 100 Fed. Rep. 955, Locii- kan, J. Postmaster General vs. Early, U. S. Sup. Ct. 1827, 12 Wheaton, 136, Marshall, Ch. J. Ross In re, U. S. Sup. Ct. 1801, 140 U. S. 453, Field, J. Thompson vs. Utah, U. S. Sup. Ct. 1S98, 170 U. S. 343, Harlan, J. United States vs. Hill, U. S. Cir. Ct. Virginia, 1 Brockeubrough, 156, Marshall, Ch. J. 35 546 TREATV-.MAKlMCi I'UWKU Ul*" THE U. S. United States, Lyon et id. vs. Iluckabee, U. S. Sup. Ct. 1872, 1(5 Wall. 414, Cliffoku, J. Walker vs. SctKvinet, U. S. Sup. Ct. 1875, 92 U. S. 90, Waite, Ch. J. Willnirn vs. State, Sup. Ct. Arkansas, 1860, 21 Ark. 198, Campton, J.; 1895, 60 Ark. 141, Wood, J. IX. Construction of Uniformity and Commerce Clauses of the Con- stitution OF the United States; Federal and State Powers of Taxation and Control of Commerce. Almy vs. California, U. S. Sup. Ct. 1860, 24 Howard, 169, Taney, Cb. J. Asher vs. Texas, U. S. Sup. Ct. 1888, 128 U. S. 129, Bradley, J. Brennan vs. Titusville, U. S. Sup. Ct. 1894, 153 U. S. 289, Breaver, J. Briscoe vs. Bank, U. S. Sup. Ct. 1837, 11 Peters, 257, McLean, J. Brown vs. Maryland, U. S. Sup. Ct. 1827, 12 Wheaton, 419, Marshall, Ch. J. Clinton Bridye, The, U. S. Cir. Ct. Iowa, 1807, 1 Woolworth, 150, Mil- ler, J. Cohens vs. Virginia, U. S. Sup. Ct. 1821, 6 Wlieaton, 264, Marshall, Ch. J. Cooley vs. Board of Port Wardetis, U. S. Sup. Ct. 1851, 12 Howard, 299, Curtis, J. Crandall vs. Nevada, U. S. Sup. Ct. 1867, 6 Wallace 35, Miller, J. Crutcher vs. Kentucky, U. S. Sup. Ct. 1891, 141 U. S. 47, Bradley, J. Fairbank vs. United States, U. S. Sup. Ct. 1901, 181 U. S. 283. Brown, J. Field vs. Clark, U. S. Sup. Ct. 1892, 143 U. S. 649, Harlan, J. Gibbons vs. Oyden. U. S. Sup. Ct. 1824, 9 Wheaton, 1, Marshall, Ch. .T. Gibbons vs. United States, U. S. Sup. Ct. 1868, 8 Wallace, 269, Mil- ler, J. Head Money Cases, U. S. Sup. Ct. 1884, 112 U. S. 580, Blatchford, J. Kennard vs. Louisiana, U. S. Sup. Ct. 1875, 92 U. S. 480, Waite, Ch. J. Knowlton vs. Moore ( War Revenue Inheritance Tax Case), U. S. Sup. Ct. 1900, 178 U. S. 41, White, J. License Tax Cases, U. S. Sup. Ct. 1866, 5 Wallace, 462, Chase, Ch. J. Loughborough vs. Blake, U. S. Sup. Ct. 1820, 5 Wheaton, 317, Mar- shall, Ch. J. McCall vs. California, U. S. Sup. Ct. 1890, 136 U. S. 104, Lamar, J. May vs. New Orleans, U. S. Sup. Ct. 1900, 178 U. S. 496, Harlan, J. Monongahela Nav. Co. vs. United States, U. S. Sup. Ct. 1893, 148 U. S. 312, Brewer, J. Munn vs. Illinois, U. S. Sup. Ct. 1876, 94 U. S. 113, Waite, Ch. J. New York vs. Miln {Passenger Cases), U. S. Sup. Ct. 1837, 11 Peters, 182, Barbour, J. Penna. vs. Wheeling Bridge Co., U. S. Sup. Ct. 1855, 18 Howard, 421, Nelson, J. INSULAR CASES APPENDIX. 547 Percear vs. Commonwealth, U. S. Sup. Ct. 1866, 5 Wallace, 475, Chase, Ch. J. Pittsburg and Southern Coal Co. vs. Bates, U. S. Sup. Ct. 1895, 156 U. S. 577, Field, J. Pollock vs. Farmers'' L. & T. Co. (Income Tax Case), U. S. Sup. Ct. 1895, 157 U. S. 429, Fullek, Ch. J. Bhodes vs. loioa, U. S. Sup. Ct. 1898, 170 U. S. 412, White, J. Rohbins vs. Shelbij Taxing District, U. S. Sup. Ct. 1897, 120 U. S. 489, Bradley, J. Sherman vs. United States, U. S. Sup. Ct. 1900, 178 U. S. 150, Shi- KAS, J. Stoulenbergh vs. Hennick, U. S. Sup. Ct. 1889, 129 U. S. 141, Fuller, Ch. J. Talbott vs. Silver Bow Co., U. S. Sup. Ct. 1891, 139 U. S. 438, Brewer, J. Thomas vs. Gay, U. S. Sup. Ct. 1808, 169 U. S. 264, Shiras, J. United States vs. Fisher, U. S. Sup. Ct. 1805, 2 Cranch, 358, Mar- shall, Ch. J. United States vs. Joint Traffic Ass'n, U. S. Sup. Ct. 1898, 171 U. S. 505, Peckham, J. Vance vs. Vandercook Co., U. S. Sup. Ct. 1898, 170 U. S. 438, White, J. X. Construction of Tariff and Other Laws of the United States. (See also Treaties and Statutes.) Adams vs. Bancroft, U. S. Cir. Ct. Mass. 1838, 3 Sumner, 384, Story, J. American Net and Twine Co. vs. Worthington, U. S. Sup. Ct. 1891, 141 U. S. 468, Brown, J. Asher vs. Texas, U. S. Sup. Ct. 1888, 128 U. S. 129, Bradley, J. Barney vs. Baltimore City, U. S. Sup. Ct. 1867, 6 Wallace, 280, Mil- ler, J. Conqueror, The (Vanderbilt Yacht Case), U. S. Sup. Ct. 1896, 166 U. S. 110, Brown, J. Cruikshank vs. Bidwell, U. S. Sup. Ct. 1900, 176 U. S. 73, Ful- ler, Ch. J. Good vs. Martin, U. S. Sup. Ct. 1877, 95 U. S. 90, Clifford, J. Hartranft vs. Wiegman, U. S. Sup. Ct. 1887, 121 U. S. 609, Blatch- FORD, J. Lascelles vs. Bidwell, U. S. Cir. Ct. S. D. N. Y. 1900, 102 Fed. Rep. 1004, Lacomre, J. Phila. & Reading R. R. Co. vs. Kenney, U. S. Cir. Ct. Penna. 1873, 18 Int. Rev. Rec. 92, McKenna, ,J. Powers vs. Barney, II. S. Cir. Ct. S. D. K Y. 1863, 5 Blatchford, 202, Nelson, J. United States vs. Dickson, U. S. Sup. Ct. 1841, 15 Pet. 141, Story, J. United States vs. Ishain. U. S. Sup. Ct. 1873, 17 Wallace, 496, Hunt, J. United States vs. Rice, U. S. Sup. Ct. 1819, 4 Wheat. 246, Story, J. United States vs. Ullman, U. S. Dt. Ct. N. Y. 1871, 4 Ben. 547, Blatch- ford, J. 548 TREATY-MAKING TOWER OF THE U. S. United Statesvs. Union Pacific By. Co., U. S. Sup. Ct. 1875, 91 U. S. 72, Davis, J. United States va. W'i'jylesworth, U. S. Cir. Ct. Mass. 1842, 2 Story, 369, Stoky, J. United States vs. Weed, U. S. Sup. Ct. 18(56, 5 Wallace, 62, Miller, J. Woodruff vs. Parhain, U. S. Sup. Ct. 1868, 8 Wallace, 123, Miller, J. XI. .Judicial Definitions of Terms used in the Constitution of the United States, and in Tariff and Other Laws. Adventure and Cargo, T/ie, U. S. Cir. Ct. Virginia, 1812, 1 Brocken- brough, 235, Marshall, Ch. J. Alameda vs. Neal, U. S. Cir. Ct. Cal. 1887, 32 Fed. Rep. 331, Field, J. Asher vs. Texas, U. S. Sup. Ct. 1888, 128 U. S. 129, Bradley, J. Brown vs. Houston, U. S. Sup. Ct. 1885, 114 U. S. 622, Bradley, J. Brown vs. Maryland, U. S. Sup. Ct. 1827, 12 Wheaton, 419, Mar- shall, Ch. J. Cherokee Nation vs. Georgia, U. S. Sup. Ct. 1831, 5 Peters, 1, Mar- shall, Ch. J. Coe vs. Errol, U. S. Sup. Ct. 1886, 116 U. S. 517, Bradley, J. Cohens vs. Virginia, U. S. Sup. Ct. 1821, 6 Wheaton, 264, Mar- shall, Ch. J. Conqueror, The ( Vanderbilt Yacht Case), U. S. Sup. Ct. 1896, 166 U. S. 110. Brown, J. Davidson vs. McKibben, Ct. of Com. Pleas, 2 Geo. IV. 1821, 3 Broderip & Bingham, 112, Dallas, Cli. J. Dixon \s. United States,JJ. S.Cir. Ct. Virginia, 1811, 1 Brockenbrough, 177, Marshall, Ch. J. Eliza and Cargo, The, U. S. Cir. Ct. Mass. 1813, 2 Gallison, 4, Story, J. Fairbank vs. United States, U. S. Sup. Ct. 1901, 181 U. S. 283, Brew- er, J. Fleming vs. Page { Tampico Duty Case), U. S. Sup. Ct. 1850, 9 Howard, 603, Taney, Ch. J. Hornbuckle vs. Toombs, U. S. Sup. Ct. 1873, 18 Wallace, 648, Brad- ley, J. King vs. Parks, N. Y. Sup. Ct. 1822, 19 Johnson, 375, Spencer, Ch. J. Lark and Cargo, The, U. S. Cir. Ct. Mass. 1812, 1 Gallison, .55, Story, J. Loughborough vs. Blake, U. S. Sup. Ct. 1820, 5 Wheaton, 317, Mar- shall, Ch. J. Marbury vs. Madison, U. S. Sup. Ct. 1803, 1 Cranch, 137, Marshall, Ch. J. Murray vs. Clark, N. Y. Com. Pleas 1873, 4 Daly 468, Daly, Ch. J. Ravesies vs. United States, V. S. Cir. Ct. Alabama, 1889, 37 Fed. Rep. 447, Pardee, J. Rhodes vs. Iowa, U. S. Sup. Ct. 1898, 170 U. S. 412, White, J. Sally and Cargo, The, U. S. Cir. Ct. Mass. 1812, 1 Galli.son, 58, Story, J. Spragup. vs. Thompson, U. S. Sup. Ct. 1886, 118 U. S. 90, Matthews, J. Stairs vs. Peaslee, U. S. Sup. Ct. 1855, 18 Howard, 521, Taney, Ch. J. INSULAR CASES APPENDIX. 549 Steamboat Co. vs. Livingston, Ct. Errors N. T. 1825, 3 Cowan, 713, Sandfokd, Chan. Sturges vs. Crowninshield, U. S. Sup. Ct. 1819, 4 Wheaton, 122, Mar- shall, Ch. J. Tuber vs. United States, U. S. Cir, Ct, Mass. 1839, 1 Story 1, Story, J. Tarpin vs. Banjess, U. S. Sup. Ct. 1886, 117 U. S. 504, Bradley, J, United States vs. Hayward, U. S. Cir. Ct. Mass. 1815, 2 Gallison, 485, Story, J. United States vs. Patten, U. S. Ct. Maine, 1 Holmes, 421, Shepley, J. Veazie vs. Moor, U. S. Sup. Ct. 1852, 14 Howard. 568, Daniel, J. Woodruff vs. Parham, U. S. Sup. Ct. 1868, 8 Wallace, 123, Miller, J. XII. Application of the First Ten Amendments (Bill op Rights) of THE Constitution OF the United States; Their Effect on the States and on Federal Laws. Brown vs. New Jersey, U. S. Sup. Ct, 1899, 175 U. S. 172, Brewer, J. Cook vs. United States, U. S. Sup, Ct. 1891, 138 U. S. 157, Harlan, J. Mitchell vs. Harmony, U, S, Sup, Ct. 1851, 13 Howard, 115, Taney, Ch. J. Monongahela Nav. Co. vs. United States, U, S, Sup. Ct. 1893, 148 U. S. 312, Brewer, J. O'Neill \s. Vermont, U, S, Sup, Ct, 1892, 144 U, S. 323, Blatch- FORD, J. Spies vs. Illinois (Chicago AnarcJiist Case), U. S. Sup. Ct, 1887, 123 U. S. 131, Waite, Ch, J. United States vs. Cruikshank, U. S, Sup. Ct. 1875, 92 U. S, 542, Waite, Ch, J. XIII. Fundamental Limitations of Government, and Their Effect UPON THE Congressional Government of Territory of the United States. American Publishing Co. vs. Fisher ( Utah Jury Case), U. S. Sup. Ct. 1897, 166 U. S. 464, Brewer, J. Bank of Columbia vs. Okely, U. S. Sup. Ct. 1819, 4 Wheaton, 235, Johnson, .1. Briscoe vs. Bank, U. S. Sup. Ct. 1837, 11 Peters, 257, McLean, J. Chicago, etc., Ry. Co. vs. Tompkins, U. S. Sup. Ct. 1900, 176 U. S. 167, Brewer, .J. Cummings vs. Missouri, U. S. Sup. Ct. 1866, 4 Wallace, 277, Field, J. Dartmouth College vs. Woodward, U. S. Sup. Ct. 1819, 4 Wheaton, 518, Marshall, Ch. J Kemmler, In re, U. S. Sup, Ct. 1890, 130 U. S. 436, Fuller, Ch. .1. Legal Tender Cases, U. S. Sup. Ct. 1869, 8 Wallace, 603, Chase, Ch. J, ; 1870, 12 Wallace, 467, Strong, J.; 1884, 110 U. S. 421, Gray, J. Loan Ass'n vs. Topeka, U. S. Sup. Ct. 1874, 20 Wallace, 655, Mil- ler, J. Maxwell vs. Bow, U. S, Sup. Ct. 1900, 176 U, S. 581, Peckham, J. 550 TREATY-MAKING POWEK OF THE U. S. Missouri vs. Leivis, U. S. Sup. Ct. 1870, 101 U. S. 22, Bijadley, J. Mormon Church vs. United States, U. S. Sup. Ct. 1890, 136 U. S. 1, Bradley, J. Murphy vs. Eamsei/, U. S. Sup. Ct. 1885, 114 U. S. 15, Matthews, J. O'Ntill vs. Vermont, U. S. Sup. Ct. 1892, 144 U. S. o23, Blatch- FORD. J. Slaughter Uouse Cases, U. S. Sup. Ct. 1872, 16 Wallace, 30, Miller, J. Thompson vs. Utah, U. S. Sup. Ct. 1898, 170 U. S. 343, IIaklax, J. United States vs. Bill, U. S. Cir. Ct. 1809, Virginia, 1 Biockeubrough, 156, Marshall, Cb. J. Weimer \s. Bunbunj, Sup. Ct. Michigan, 1874, 30 Mich. 201, Cooley, J. XIV. Suability of the United States, and of States, by Citizens AND BY Aliens. Carlisle vs. United States, U. S. Sup. Ct. 1872, 16 Wallace, 147, Field, J. Cherokee Nation vs. Georgia, V. S. Sup. Ct. 1831, 5 Peters, 1, Mar- shall, Ch. J. Chisholm vs. Georgia, U. S. Sup. Ct. 1793, 2 Dallas, 419, Jay, Ch. J., Ibedell, Blair, Wilson, Cushing, JJ. Ficheras Case, U. S. Ct. of Claims, 1873, 9 Ct. of Claims, 254, Xott, J. Gibbons vs. United States, U. S. Sup. Ct. 1868, 8 Wallace, 269, Mil- ler, J. nm vs. United States. U. S. Sup. Ct. 1893, 149 U. S. 593, Gray, J. New Hampshire vs. Louisiana, U. S. Sup. Ct. 1883, 108 U. S. 76, Waite. Ch. J. Scott vs. Jones, U. S. Sup. Ct. 1847, 5 Howard, 343, Woodbury, J. United Stafesva. O'Keefe, U. S. Sup. Ct. 1870, 11 Wallace, 178, Davis, J. Worcester vs. Georgia, U. S. Sup. Ct. 1832, 6 Peters, 515, Marshall, Ch. J. XV. Military Powers and Government; Military Occupancy; Prize AND Conquest. Alexander vs. Roxdet, U. S. Sup. Ct. 1871, 13 Wallace, 386, Davis. J. American Ins. Co. vs. Canter (Florida Case), U. S. Sup. Ct. 1828, 1 Peters, 511, Marshall, Ch, J. Amiable Isabella, The, U. S. Sup. Ct. 1821, 6 Wheaton, 1, Story, J. Amy Warwick, The, U. S. Dist. Ct. Mass. 1862, 2 Sprague, 123, 150, Sprague, .1. Blankard vs. Galdy, King & Queen's Bench, 5 Wm. ct Mary, 4 Mod. 222, Per Curiam. Calvin's Case, Ct. Exchequer Chamber, 6 James I., 4 Coke. 1. Campbell vs. Hall, King's Bench, 15 Geo. III. Cowper, 204. Lord Mansfield. Coleman vs. Tennessee, U. S. Sup. Ct. 1878, 97 IT. S. 509, Field, J. Cro.ss vs. Harrison (San Francisco Duty Case), U. S. Sup. Ct. 1853. Ki Howard, 164. Wayne, J. Dow vs. Johnson, U. S. Sup. Ct. 1879, 100 U. S. 158, Field, J. iNSltLAK CASES APPENDIX. 551 Elphinstone vs. Bedreechund, Privy Council 1830, 1 Knapp's P. C. Rep. 316, Lord Tenterdp:n. Exchange (Schooner] vs. McFudden, U. S. Sup. Ct. 1812, 7 Crancb, 116, Marshall, Ch. J. Fleming vs. Page ( Tami)ico Duly Case), U. S. Sup. Ct. 1850, 9 Howard, 603, Taney, Cb. J. Georgia vs. Stanton, XJ. S. Sup. Ct. 1867, 6 Wallace, 50, Nelson, J, Grapeshot, The, U. S. Sup. Ct. 1869, 9 Wallace, 129, Chase, Cb. J. Hamilton vs. Dillin, U. S. Sup. Ct. 1874, 21 Wallace, 73, Bradley, J. Jecker vs. Montgomery, U. S. Sup. Ct. 1851, 13 Howard, 498, Taney, Cb. J. Legal Tender Cases, U. S. Sup. Ct. 1869, 8 Wallace, 603, Chase, Cb. J. ; 1870, 12 Wallace, 457, Strong, J.; 1884, 110 U. S. 421, Gray, J. Leltensdorfer vs. Webb, U. S. Sup. Ct. 1857, 20 Howard, 176, Daniel, J. Liverpool Hero, The, U. S. Cii-. Ct. Mass. 1814, 2 Gallisou, 184, Stoky, J. Luther vs. Borden, U. S. Sup. Ct. 1849, 7 Howard, 1, Taney, Cb. J. Mechanics' Bank vs. Union Bank, U. S. Sup. Ct. 1874, 22 Wallace, 276, Strong, J. Milligan, Ex parte, U. S. Sup. Ct. 1866, 4 Wallace, 2, Davis, J. Mitchell vs. Harmony, U. S. Sup. Ct. 1851, 13 Howard, 115, Taney, Cb. J. Mostyn vs. Fabrigas, King's Bencb, 1774, Cowper, 180, Lord Mans- field, Neely vs. Henkel, U. S. Sup. Ct. 1901, 180 U. S. 109, Harlan, J. New Orleans vs. Steamship Co., U. S. Sup. Ct. 1874, 20 Wallace, 387, SWAYNE, J. Ortiz, Ex parte, U. S. Cir. Ct. Minnesota, 1900, 100 Fed. Rep. 955, Lochran, J. Paquette Habana, The, U. S. Sup. Ct. 1900, 175 U. S. 677, Gray, J. Pizarro, The, U. S. Sup. Ct. 1817, 2 Wbeaton, 227, Story, J. Raymond vs. Thomas, U. S. Sup. Ct. 1875, 91 LT. S. 712, Swayne, J. Rose vs. Himeley, U. S. Sup. Ct. 1808, 4 Crancb, 241, Marshall, Cb. J. Siebold, Ex parte, U. S. Sup. Ct. 1897, 100 U. S. 371, Bradley, J. Stearns vs. United States, U. S. Sup. Ct. 1867, 6 Wallace, 589, Swayne, J. Tennessee vs. Davis, U. S. Sup. Ct. 1879, 100 U. S. 257, Strong, J. Texas vs. White, U. S. Sup. Ct. 1868, 7 Wallace 700, Chase, Cb, J. Thirty Hogsheads, of Sugar vs. Boyle, U. S. Sup. Ct. 1815, 9 Crancb, 191, Marshall, Cb. J. United States vs. Castillero, U. S. Sup. Ct. 1802, 2 Black, 1, Clifford, J. United States, Lyon et al., vs. Huckabee, U. S. Sup. Ct. 1872, 16 Wall. 414, Clifford, .J. United States vs. Repentigny, U. S. Sup. Ct. 1866, 5 Wallace, 211, Nelson, J. United States vs. Rice (The Castine Case), U. S. Sup. Ct. 1819, 4 Wbeaton, 246, Story, J, Vallandlgham, Ex parte, U. S. Cir. Ct. Obio, 1863, Fed. Cas. 16,81(); (pampblet Rickey & Carroll, Cincinnati.) Leavitt, .T. Williams vs. Suffolk Ins. Co., U. S. Sup. Ct. 1839, 13 Peters, 415, Mc- Lean, J. \ OD'l TREATY-MAKING POWER OF THE U. S. XVI. National Unity and the CoNTiioi, of Forkign Rklations of the United States by the Central Government. Chae Chan Piny vs. United Slates, U. S. Sup. Ct. 1889, 130 U. S. 581, Field, J. Chew Ileong vs. United States, U. S. Sup. Ct. 1884, 112 U. S. 53(5, Har- lan, J. Cooper, In re {Beriwi Sea Cases), U. S. Sup. Ct. 1891, 138 U. S. 404, and 1892, 143 U. S. 472, Fuller, Ch. J. Ekiu, Nishimura vs. United States, U. S. Sup. Ct. 1891, 142 U. S. 651, Gray, J. Exchange {Schooner) vs. McFadden, U. S. Sup. Ct. 1812, 7 Craucli, 116, Marshall, Ch. J. Fong Yue Ting vs. United States, U. S. Sup. Ct. 1893, 149 U. S. 698, Grat, J. Geofroy vs. Biggs, U. S. Sup. Ct. 1890, 133 U. S. 258, Field, J. Jones vs. United States, U. S. Sup. Ct. 1890, 137 U. S. 202, Gray, J. Neehj vs. Henkel, U. S. Sup. Ct. 1901, 180 U. S. 109, Harlan, J. Neio York vs. Miln {Passenger Cases), U. S. Sup. Ct. 1837, 11 Peters, 102, Barbour, J. Paqnette Habana, The, U. S. Sup. Ct. 1900, 175 U. S. 677, Gray, J. Pizarro, The, U. S. Sup. Ct. 1817, 2 Wheaton, 227, Story, J. Quarles, In re, U. S. Sup. Ct. 1895, 158 U. S. 532, Gray, J. Bose vs. Himeletj, U. S. Sup. Ct. 1808, 4 Cianch, 241, Marshall, Ch. J. Boss, In re, U. S. Sup. Ct. 1891, 140 U. S. 453, Field, J. United States vs. Bauscher, U. S. Sup. Ct. 1886, 119 U. S. 407, Mil- ler, J. United States vs. Wong Kim Ark {Chinese Baby Case), U. S. Sup. Ct. 1898, 169 U. S. 649, Gray, J. Wong Wing vs. United States, U. S. Sup. Ct. 1896, 163 U. S. 228, Shlras, J. XVII. Extent of the Treaty-Making Power of the United States. American Ins. Co. vs. Canter {Florida Case), U. S. Sup. Ct. 1828, 1 Peters, 511, Marshall, Ch. J. Amiable Isabella, The, U. S. Sup. Ct. 1821, 6 Wheaton, 1, Story. J. Boyd vs. Nebraska, U. S. Sup. Ct. 1892, 143 U. S. 135, Fuller, Cli. J. Chae Chan Ping vs. United States {Chinese Exclusion Case), U. S. Sup. Ct. 1889, 1.30 U. S. 581, Field, J. Cheio Heong v. United States, U. S. Sup. Ct. 1884, 112 U. S. 536, Har- lan, J. Daxisvs. Police Jury, etc., U.S. Sup. Ct. 18.50. 9 Howard, 280, Wayne, J. Doe {Clark) vs. Braden, U. S. Sup. Ct. 1853, 16 Howard, 635, Taney, Ch. J. Fleming vs. Page {Tampico Duty Case), U. S. Sup. Ct. 1850, 9 Howard, 683, Taney, Ch. J. Fong Yue Ting vs. United States {Chinese Exclusion Case), U. S. Sup. Ct. 1893, 149 U. S. 698. Gray, J. INSULAR CASES APPENDIX. 553 Foster vs. Nellson, U. S. Sup. Ct. 1829, 2 Peters, 253, Marshall, Ch. J. Geofroy vs. RUjgs, U. S. Sup. Ct. 1890, 133 U. S. 258, Field, J. Head Money Cases, U. S. Sup. Ct. 1884, 112 U. S. 580, Miller, J. La Abra, etc., Co. vs. United States, U. S. Sup. Ct. 1899, 175 U. S. 423, Harlan, J. MUchel vs. United States, U. S. Sup. Ct. 1835, 9 Peters, 711, Bald- win, J. New Orleans vs. United States, U. S. Sup. Ct. 1836, 10 Peters, 662, McLean, J. New York vs. Mlln (Passenger Cases), U. S. Sup. Ct. 1837, 11 Peters, 102, Barbour, J. Ortiz, Ex parte, U. S. Cir. Ct. Minnesota, 1900, 100 Fed. Rep. 955, LOCHRAN, J. Pollard vs. Hagan, U. S. Sup. Ct. 1845, 3 Howard, 212, McKinley, J. Boss, In re, U. S. Sup. Ct. 1891, 140 U. S. 453, Field, J. Scott vs. Saiulford [Bred Scott Case), U. S. Sup, Ct. 1857, 19 Howard, 393, Taney, Ch. J. Strother vs. Lucas, U. S. Sup. Ct, 1832, 6 Peters, 763, Thompson, J. United States vs. Arredundo, U. S. Sup. Ct. 1832, 6 Peters, 691, Bald- win, J. United States vs. Forty-three gallons, etc., U. S. Sup. Ct. 1876, 93 U, S. 188, Davis, J.; and 1883, 108 U. S. 491, P^ield, J, United States vs. Gratiot, U. S, Sup, Ct, 1840, 14 Peters, 526, Thomp- son, J, United States vs. Nelson, U. S. Dist. Ct. Alaska, 1886, 29 Fed. Rep. 202, Dawson, J., and affirmed 30 Fed. Rep. 112, Deady, J. United States vs. Percheman, U. S. Sup. Ct. 1833, 7 Peters, 51, Mar- shall, Ch. J. United States vs. Rauscher, U, S. Sup. Ct. 1886, 119 U, S, 407, Mil- ler, J, United States vs. Reynes, U. S. Sup. Ct. 1850, 9 Howard, 127, Daniel, J, United States vs. Repentigny, U. S. Sup. Ct. 1866, 5 Wallace, 211, Nelson, J. Ware vs. Hylton, U. S. Sup. Ct. 1796, 3 Dallas, 199, Chase, Wilson, Paterson, Cushing, Iredell, J J. Whitney vs. Robertson, U. S. Sup. Ct. 1888, 124 U. S. 190, Field, J. XVIII. Effect of Cession of Territory, by Treaty and by Conquest, on Private Rights of the Inhabitants and on the Continuance op Local Laws op the Ceded Territory, Alexander vs. Roulet, U. S. Sup. Ct. 1871, 13 Wallace, 386, Davis, J. American Ins. Co. vs. Canter (Florida Case), U. S. Sup. Ct. 1828, 1 Peters, 511, Marshall, Ch, J, Blankard vs. Galdy, King & Queen's Bench, 5 Wm. & M. 4 Modern 222, Per Curiam. Calvin's Case, Court Exch. Cliain. 6 .James I, 4 Coke, 1. Campbell \s,. Hall, Kings' Bench, 15 Geo. Ill,, Cowper,204, LOBD Mans- field, OO^ TREATY-MAKING POWER OF THE V. S. Chicago, etc., By. Co., vs. McGlinn, U. S. Sup. Ct. 1885, 114 U. S. 542, Field, J. Chouteau vs. Eckhart, U. S. Sup. Ct. 1844, 2 Howard, 344, Catron, J. Cross vs. Harrison (San Francisco Duty Case), U. S. Sup. Ct. 1853, 16 Howard, 164, Wayxe, J. Delassus vs. United States, U. S. Sup. Ct. 1835, 9 Peters, 117, Mar- shall, Ch. J. Fama, The, High Ct. Admiralty 1804, 5 Ch. Robinson, 106, Sir W. Scott. Foster vs. Neilson, U. S. Sup. Ct. 1829, 2 Peters, 253, Marshall, Ch. J. Garcia vs. Lee, U. S. Sup. Ct. 1838, 12 Peters, 511, Taney, Ch. J. Hullet vs. Hunt, Sup. Ct. Alabama, 1845, 7 Ala. Rep. 882, Collier, Ch. J. E olden vs. Hardy, U. S. Sup. Ct. 1898, 169 U. S. 366, Brown, J. InrjUsvs. Sailors' Snug Harbor, U. S. Sup. Ct. 1830, 3 Peters, 99, Thomp- son, J. Keene vs. McDonoiigh, U. S. Sup. Ct. 18.34, 8 Peters, 308, Thompson, J. Leitensdurfer vs. Webh, U. S. Sup. Ct. 1857, 20 Howard, 176, Daniel, J. Lord Bishop of Natal, Privy Council, 1864, 3 Moore P. C. N. S. 115. Westbury, Ld. Chan. McKay vs. Campbell, U. S. Dist. Ct. Oregon, 1871, 2 Sawyer, 118, Deady, J. Mitchel vs. United Slates, U. S. Sup. Ct. 1835, 9 Peters, 711, Bald- win, J. Neely vs. Henkel, U. S. Sup. Ct. 1901, 180 U. S. 109, Harlan, J. New Orleans vs. Armas, U. S. Sup. Ct. 1835, 9 Peters, 224, Mar- shall, Ch. J. Neiv Orleans vs. Steamship Co., V. S. Sup. Ct. 1874, 20 Wallace, 387, SwAYNE, J. Ortiz, Exparte, U. S. Cir. Ct. Minnesota, 1900, 100 Fed. Rep. 955, Loch- ran, J. Penn vs. Lord Baltimore, High Ct. of Chancery, 1750, 1 Vesey, Sr., 445, Hardwicke, Ld. Chan. Pollard vs. Hagan, U. S. Sup. Ct. 1845, 3 Howard, 212, McKinley, J. Pollard's Heirs vs. Kibbe, U. S. Sup. Ct. 1840, 14 Peters, 353, Thomp- son, J. Sah Quah's Case, U. S. Dist. Ct. Alaska, 1886, 31 Fed. Rep. 327, Daw- son, J. Scott vs. Sandford [Bred Scott Case). U. S. Sup. Ct. 1857, 19 Howard, 393, Taney, Ch. J. Soulard vs. United States, U. S. Sup. Ct. 1330, 4 Peters 511, Mar SHALL, Ct. J. Stearns vs. United States, U. S. Sup. Ct. 1867, 6 Wallace, 589, Swayne, J. Strother vs. Lnca., U. S. Cir. Ct. Mass. 1851, 1 Curtis, 23, Curtis, J. United States vs. Eauscher, U. S. Sup. Ct. 1886, 119 U. S. 407, Mil- ler, J, Vcdlandigham, Ex parte, U. S. Cir. Ct. Ohio, 1863, Fed. Cas. 16,816 (pamphlet Rickey & Carroll, Cincinnati), Leavitt, J. Weimerv&. Bunbury, Sup. Ct. Micliigan, 1874, 30 Mich. 201, Cooley, J. Tick Wo vs. Hopkins, U. S. Sup. Ct. 1886, 118 U. S. 356, Matthews, J. XX. Citizenship, Birth and Allegiance as affected by Treaties, Statutes and the Constitution. American Ins. Co. vs. Canter (Florida Case), U. S. Sup. Ct. 1828, 1 Peters, 511, Marshall, Ch. J. Barnes vs. District of Columbia, U. S. Sup. Ct. 1875, 91 U. S. 542, Hunt, J. Boyd vs. Nebraska, U. S. Sup. Ct. 1892, 143 U. S. 135, Fuller, Ch. J. Calviri's Case, Court of Exch. Chamber, 6 James I, 4 Coke, 1. Campbell vs. Hall, King's Bencli, 15 Geo. Ill, Cowper, 204, Lord Mansfield. Cherokee Nation vs. Georgia, U. S. Sup. Ct. 1831, 5 Peters, 1, Mar- shall, Ch. J. INSULAR CASES APPENDIX. 557 Cooper, III re [Bering Sea Cases), U. S. Sup. Cfc. 1891, 138 IT. S. 404, and 1892, 143 U. S. 472, Fuller, Cli. J. mic vs. yViUdiis, U. S. Sap. Ct. 1884, 112 U. S. 94, G-ray, J. Fong Yue TIykj \s. United States {Chinese Exclusion Case), U. S. Sup. Ct. 1893, 149 U. S. G98, Gray, J. Geofroy vs. RUigs, U. S. Sup. Ct. 1890, 133 U. S. 258, Field, J. Head Money Cases, U. S. Sixp. Ct. 1884, 112 U. S. 580, Miller, J. Hepburn vs. Ellzey, TJ. S. Sup. Ct. 1805, 2 Cranch, 445, Marshall, Ch. J. IngliH vs. Sailors' Snug Harbor, U. S. Sup. Ct. 1830, 3 Peters, 99, Thompson, J. Lynch vs. Clark, N". Y. Court of Chancery, 1844, 1 Sanford Ch. 583, Sandford, V. Chau. McKay vs. Campbell, U. S. Dist. Ct. Oregon, 1871, 2 Sawyer, 118, Deady, J. Martin vs. Hunter, U. S. Sup. Ct. 1816, 1 Wheaton, 304, Story, J. Minor vs. Happersett (Woman's Rights Case), U. S. Sup. Ct. 1874, 21 Wallace, 162, Waite, Ch. .J. Monre vs. Elinois, U. S. Sup. Ct. 1852, 14 Hoveard, 13, Grier, J. O'Neill vs. Vermont, U. S. Sup. Ct. 1892, 144 U. S. 323, Blatch- FORD, J. Ortiz, Ex parte, U. S. Cir. Ct. Minnesota, 1900, 100 Fed. Rep. 955, LOCHRAX, J. PennYB. Lord Baltimore, High Ct. of Chancery, 1750, 1 Vesey, Sr., 445, Hardwicke, Lord Chan. Pizarro, The, IT. S. Sup. Ct. 1817, 2 Wheaton, 227, Story, J. Ross, In re, U. S. Sup. Ct. 1891, 140 U. S. 453, Field, ,J. Sah Quah's Case, U. S. Dist. Ct. Alaska, 1886, 31 Fed. Rep. .327, Daw- son, J . Scott vs. Sandford, (Dred Scott Case), U. S. Sup. Ct. 1857, 19 Howard, 393, Taney, Ch. ,J. Shanks vs. Dupont, U. S. Sup. Ct. 1830, 3 Peters, 242, Story, J. Slaughter House Cases, U. S. Sup. Ct. 1872, 16 Wallace, 36, Miller, J. Smith vs. Maryland, U. S. Sup. Ct. 1810, 6 Cranch, 286, Washing- ton, J. Spies vs. Illinois [Chicago Anarchist Cases), IT. S. Sup. Ct. 1887, 123 U. S. 131, Waite, Ch. ,J. Swan, The, U. S. Dist. Ct. Washington, 1892, 50 Fed. Rep. 108, Han- ford, J. Tennessee vs. Davis, U. S. Sup. Ct. 1879, 100 U. S. 257, Strong, J. Texas vs. White, U. S. Sup. Ct. 1868, 7 Wallace, 700, Chase, Ch. .1. Thirty Hogsheads of Sugar vs. Boyle, U. S. Sup. Ct. 1815, 9 Cranch, 191, Marshall, Cli. ,J. United States vs. Forty-three Gallons, etc., U. S. Sup. Ct. 1876, 93 U. S. 188, Davis, J., and 1883, 108 U. S. 491, Field, ,J. United Statesvs. Kayama, U. S. Sup. Ct. 1886, 118 U. S. 375, Mil- ler, J. United States vs. Osborne, U. S. Dist. Ct. Oregon, 1880, 6 Sawyer, 406, Deady, J. 558 TREATY-MAKING POVv^Ell OF THE U. S. United States vs. Repentkjny, U. S. Sup, Ct, 1866, 5 Wallace, 211, Nel- sox, J. United States vs. Rhodes, U. S. Cir. Ct. Kentucky, 1866, 1 Abb. U. S. Kep. 28, SwAYNK, J. United States vs. Boyers, U. S. Sup. Ct. 1846, 4 Howard, .j67, Ta- ney, Cli. J. United States vs. Wonf/ Kim Ark {Chinese Baby Case), U. S. Sup. Ct. 1898, l()i) U. S. 649, Gkay, J. Wonrj Winy vs. United States, U. S. Sup. Ct. 1896, 163 U. S. 228, Shi HAS, J. Worcester vs. Georyia, U. S. Sup. Ct. 1832, 6 Peters, 515, Mar- shall, Ch. J. Yick Wo vs. Hopkins, U. S. Sup. Ct. 1886, 118 U. S. 356, Matthews, J. XXI. Construction of Treaties and General Rules Applicable Thereto. Executive and Judicial Construction, Congres- sional POAVER thereover. Amiable Isabella, The, U. S. Sup. Ct. 1821, 6 Wheaton, 1, Story, J. Boijd vs. Nebraska, U. S. Sup. Ct. 1892, 143 U. S. 135, Fuller, Ch. J. Castru vs. DeUriarte, U. S. Dist. Ct. S. D. N. Y. 1883, 16 Fed. Kep. 93, Brown, J. Chae Chan Piny vs. United States (Chinese Exclusion Case), U. S. Sup. Ct. 1889, 130 U. S. 581, Field, J. Cherokee Tobacco, The, U. S. Sup. Ct. 1870, 11 Wallace, 616, Swayxe, J. Cheio Heong vs. United States, U. S. Sup. Ct. 1884, 112 U. S. 536, Har- lan, J. Clinton Bridge, The, U. S. Cir. Ct. Iowa, 1867, 1 Wool worth, 150, Mil- ler, J. Coffee vs. Groover, U. S. Sup. Ct. 1887, 123 U. S. 1, Bradley, J. Elk vs. Wilkins, U. S. Sup. Ct. 1884, 112 U. S. 94, Gray, J. Fony Yue Tiny vs. United States {Chinese Exclusion Case), U. S. Sup. Ct. 1893, 149 U. S. 698, Gray, J. Foster vs. Neilson, U. S. Sup. Ct. 1829, 2 Peters, 253, Marshall, Ch. J. Frelinyhuysen vs. Key, U. S. Sup. Ct. 1884, 110 U. S. 63, Waite, Ch. J. Garcia vs. Lee, U. S. Sup. Ct. 1838, 12 Peters, 511, Taney, Ch. J. Geofroy vs. Biyys, U. S. Sup. Ct. 1890, 133 U. S. 258, Field, J. Great Western Ins. Co. vs. United States, U. S. Sup. Ct. 1884, 112 U. S. 193, Miller, .J. Griswold vs. Atlantic Dock Co., N. Y. Sup. Ct. 1855, 21 Barbour, 225, Strong, J. Haver vs. Taker, U. S. Sup. Ct. 1869, 9 Wallace, 32, Davis, J. Bend Money Cases, U. S. Sup. Ct. 1884, 112 U. S. 580, Miller, J. Holmes vs. Jennison, U. S. Sup. Ct. 1840, 14 Peters, 540, Thompson, J. Inylis vs. Sailors' Snuy Harbor, U. S. Sup. Ct. 1830, 3 Peters, 99, Thomp- son, J. Jecker vs. Mayee (Haver vs. Taker), U. S. Sup. Ct. 1869, 9 Wallace, 32, Davis, J. INSULAR CASES APPENDIX. 559 Kansas Indians, The, U. S. Sup. Ct. 1866, 5 Wallace, 737, Davis, J. La Ahra, etc., Co. vs. United States, U. S. Sup. Ct. 1899, 175 U. S. 423, Harlan, J. McKay vs. Caiiq)belt, U. S. Dist. Ct. Oregon, 1871, 2 Sawyer, 118, Deady, J. Martin vs. Waddell, U. S. Sup. Ct. 1842, 16 Peters, 367, Taney, Ch. J. Martin vs. Hunter, U. S. Sup. Ct. 1816, 1 Wheaton, 304, SxoitY, J. Mitchel vs. United States, U. S. Sup. Ct. 1835, 9 Peters, 711, Bald- win, J. Neelt/ vs. Ilenkel, U. S. Sup. Ct. f901, 180 U. S. 109, Harlan, J. New Orleans vs. Armas, U. S. Sup. Ct. 1835, 9 Peters, 224, Mar- shall, Ch. J. Nerv Orleans vs. United States, U. S. Sup. Ct. 1836, 10 Peters, 662, McLean, J. Neiv York vs. Miln {Passenger Cases), U. S. Sup, Ct. 1837, 11 Peters, 102, Barbour, J. Pollard vs. Hagan, U. S. Sup. Ct. 1845, 3 Howard, 212, McKinley, J. Pollard's Heirs vs. Kibbe, U. S. Sup. Ct. 1840, 14 Peters, 353, Thomp- son, J. Eoss, In re, U. S. Sup. Ct. 1891, 140 U. S. 453, Field, J. Sah Quah's Case, U. S. Dist. Ct. Alaska, 1886, 31 Fed. Rep. 327, Daw- son, J. Shanks vs. Dnpont, U. S. Sup. Ct. 1830, 3 Peters, 242, Story, J. Soulard vs. United States, U. S. Sup. Ct. 1830, 4 Peters, 511, Mar- shall, Ch. J. Strothers vs. Lucas, U. S. Sup. Ct. 1832, 6 Peters, 763, Thompson, J. Taylor vs. Morton, U. S. Cir, Ct. Mass. 1855, 2 Curtis, 454, Curtis, J., (aff'd U. S. Sup. Ct. 1862, 2 Black, 481, Clifford, J.). United States vs. Arredondo, U. S. Sup. Ct. 1832, 6 Peters, 691, Bald- win, J. United States vs. Castillero, U. S. Sup. Ct. 1862, 2 Black, 1, Clif- ford, J. United States vs. Forty-three Gallons, etc., U. S. Sup. Ct. 1876, 93 U. S. 188, Davis, J., and 1883, 108 U. S. 491, Field, J. United States vs. Gratiot, U. S. Sup. Ct. 1840, 14 Peters, 526, Thomp- son, J. United States vs. Kagaina, U. S. Sup. Ct. 1886, 118 U. S. 375, Mil- ler, J. United States vs. Percheman, U. S. Sup. Ct. 1833, 7 Peters, 51, Mar- shall, Ch. J. United States vs. Ravscher, U. S. Sup. Ct. 1886, 119 U. S. 407, Mil- ler, J. United States vs. liepentigny, U. S. Sup. Ct. 1866, 5 Wallace, 211, Xel- SON, J. United States vs. Reynes, U. S. Sup. Ct. 1850, 9 Howard, 127, Dan- iel, J. United States vs. Rogers, U. S. Sup. Ct, 1846, 4 Howard, 567, Taney, Ch. J. 560 TREATV-MAKINC IMIWER OF THE U. S. United States vs. Texa^, U. S. Sup. Ct. 1896, 1G2 U. S. 1, Harlan, J, United States vs. Tobacco Factory, U. S. Cir. Ct. Arkansas, 1871, 1 Dillon, 264, Caldwell, J. Ware vs. Hi/ltoa, U. S. Sup. Ct. 1796, 3 Dallas, 199, Chase, Wilson, Patekson, Cushing, Iredell, JJ. Whitney vs. Robertson, U. S. Sup. Ct. 1888, 124 U. S. 190, Field, J. Wo7ig Wing vs. United States, U. S. Sup. Ct. 1896, 163 U. S. 228, Shiras, J. Tick Wo vs. Hopkins, U. S. Sup. Ct. 1886, 118 U. S. ,356, Matthews, J, XXII. Relative Effects of Treaties and United States Statutes. Bates vs. Clark, U. S. Sup. Ct. 1877, 95 U. S. 204, Miller, J. Chae Chan Ping vs. United States {Chinese Exclusion Case), U. S. Sup. Ct. 1889, 130 U. S. 581, Field, J. Cherokee Tobacco, The, U. S. Sup. Ct. 1870, 11 Wallace, 616, Swayne, J. Chew Heong vs. United States, U. S. Sup. Ct. 1884, 112 U. S. 536, Har- lan, J. Doe (Clark) vs. Braden, U. S. Sup. Ct. 1853, 16 Howard, 6.35. Taney Ch. J. Fong Yue Ting vs. United States {Chinese Exclusion Case), U. S. Sup Ct. 1893, 149 U. S, 698, Gray, J. Foster vs. Neilsoii, U. S. Sup. Ct. 1829, 2 Peters, 253, Marshall, Ch. J. Frelinghuysen vs. Key, U. S. Sup. Ct. 1884, 110 U. S. 63, Waite, Ch. J. Great Western Ins. Co. vs. United States, U. S. Sup. Ct. 1884, 112 U. S. 193, Miller, J. Griswold vs. Atlantic Dock Co., N. Y. Sup. Ct. 1855, 21 Barbour, 225, Strong, J. Head Mojiey Cases, U. S. Sup. Ct. 1884, 112 U. S. 580, Miller, J. Kansas Indians, The, U. S. Sup. Ct. 1866, 5 Wallace, 737, Davis, J. LaAbra, etc., Co. vs. United States,V. S. Sup. Ct. 1899', 175 U. S. 423, Harlan, J. Mobile vs. Eslava, U. S. Sup. Ct. 1842, 16 Peters, 234, McLean, J. Neio York vs. Miln {Passenger Cases), U. S. Sup. Ct. 1837, 11 Peters, 102, Barbour, J. Ross, In re, U. S. Sup. Ct. 1891, 140 U. S. 453, Field, J. Taylor vs. Morton, U. S. Cir. Ct. Mass. 1855, 2 Curtis, 454, Curtis, J., (affVl U. S. Sup. Ct. 1862, 2 Black, 481, Clifford, J.). United States vs. Forty-three Gallons, etc., U. S. Sup. Ct. 1876, 93 U. S. 188, Davis, J., and 1883, 108 U. S. 491, Field, J. United States vs. Rauscher, U. S. Sup. Ct. iseo, 119 U. S. 407, Mil- ler, J. Whitney vs. Robertson, U. S. Sup. Ct. 1888, 124 U. S. 190, Field, J. Wong Wing vs. United States, U. S. Sup. Ct. 1896, 163 U. S. 228 Shiras, J. Yick Wo vs. Hopkins, U. S. Sup. Ct. 1886, 118 U. S. 356, Matthews, J. INSULAR CASES APPENDIX. 561 XXIII. Relative Effects of Treaties made by the United States and State Laws. Cherokee Nation vs. Georgia, U. S. Sup. Ct. 1831, 5 Peters, 1, Mab- shall, Ch. J. Clinton Bridge, The, U. S. Cir. Ct. Iowa, 1867, 1 Woolworth, 150, Miii- liER, J. Geofroy vs. Biugs, U. S. Sup. Ct. 1890, 133 U. S. 258, Field, J. Haver vs. Taker, U. S. Sup. Ct. 1869, 9 Wallace, 32, Davis, J. Holmes vs. Jennison, U. S. Sup. 1840, 14 Peters, 540, Thompson, J. Hurltado vs. California, U. S. Sup. 1884, 143 U. S. 570, Blatchford, J. Inglls vs. Sailors' Snug Harbor, U. S. Sup. Ct. 1830, 3 Peters, 99, Thomp- son, J. Jecker vs. Magee, same as Haver vs. Yaker, supra. Martin vs. Waddell, U. S. Sup. Ct. 1842, 16 Peters, 367, Taney, Ch. J. Martin vs. Hunter, U. S. Sup. Ct. 1816, 1 Wheaton, 304, Story, J. New York vs. Miln (Passenger Cases), U. S. Sup. Ct. 1837, 11 Peters, 102, Barbour, J. Shanks vs. Dupont, U. S. Sup. Ct. 1830, 3 Peters, 242, Story, J. United States vs. Forty-three Gallons, etc., U. S. Sup. Ct. 1876, 93 U. S. 188, Davis, J.; 1883, 108 U. S. 491, Field, J. Ware vs. Hyltan, U. S. Sup. Ct. 1796, 3 Dallas, 199, Chase, Wilson, Paterson, Cushing, Iredell, JJ. Tick Wo vs. Hopkins. U. S. Sup. Ct. 1886, 118 U. S. 356, Matthews, J. XXIV. When Treaties take Effect as to the Contracting Govern- ments AND AS to the KIGHTS OF INDIVIDUALS AFFECTED THEltEBY. Chouteau vs. Eckhurt, U. S. Sup. Ct. 1844, 2 Howard, 344, Catron, J. Davis vs. Police Jury, etc., U. S. Sup. Ct. 1850, 9 Howard, 280, Wayne, J. Doe (Clark) vs. Braden, U. S. Sup. Ct. 1853, 16 Howard, 635, Taney, Ch. J. Haver vs. Yaker, U. S. Sup. Ct. 1869, 9 Wallace, 32, Davis, J. Head Money Cases, U. S. Sup. Ct. 1884, 112 U. S. 580, Miller, J. Inglis VS. Sailors'' Snug Harbor, U. S. Sup. Ct. 1830, 3 Peters, 99, Thompson, J. Jecker vs. Magee, same as Haver vs. Yaker, supra. Ortiz, Ex parte, U. S. Cir. Ct. Minn. 1900, 100 Fed. Rep. 9.55, LocH- RAN, J. TuT/lor vs. Morton, U. S. Cir. Ct. Mass. 1855, 2 Curtis, 454, Curtis, J. (aff'd U. S. Sup. Ct. 1862, 2 Black. 4S1, Cliffohd, J.). United States vs. Beynes, U. S. Sup. Ct. 1850, 9 Howard, 127, Dan- iel, J. Whitney vs. Robertson, U. S. Sup. Ct. 1888, 124 U. S. 190, Field, J. 36 562 TKEATY-.MAKING POWER OF THE U. S. XXV. Status of Indian Tribes and the Construction of Indian Trea- ties; THE Relative Effect of Indian Treaties and State and Federal, Laavs. Bates vs. Clark, U. S. Sup. Ct. 1877, 95 U. S. 204, Miller, J. Cherokee Nation vs. Georgia, U. S. Sup. Ct. 1831, 6 Peters, 1, Mar- shall, Ch. J. Cherokee Tobacco, The, U. S. Sup. Ct. 1870, 11 Wallace, 616, Swayne, J. Crow Don, Ex parte, U. S. Sup. Ct. 1883, 109 U. S. 556, Matthews, J. Elk vs. Wilkinx, U. S. Sup. Ct. 1884, 112 U. S. 94, Gray, J. Johnson vs. Mcintosh, U. S. Sup. Ct. 1823, 8 Wheaton, 543, Mar- shall. Ch. J. Kansas Indians, The, U. S. Sup. Ct. 1866, 5 Wallace, 737, Davis, J. Sah Quah's Case, U, S. Dist. Ct. Alaska, 1886, 31 Fed. Rep. 327, Daw- son, J. Taltan vs. Mayes, U. S. Sup. Ct. 1896, 163 U. S. 376, White, J. United States vs. Forty-three Gallons, etc., U. S. Sup. Ct. 1876, 93 U. S. 188, Davis, J., and 1883, 108 U. S. 491, Field, J. United States vs. Eagama, U. S. Sup. Ct, 1886, 118 U. S. 375, Mil- ler, J. United .States vs. Osborne, U. S. Dist. Ct. Oregon, 1880, 6 Sawyer, 406, Deady, J. United States vs. Rogers, U. S. Sup. Ct. 1846, 4 Howard, 567, Taney, Ch. J. United States vs. Tobacco Factory, U. S. Cir. Ct. Arkansas, 1871, 1 Dillon, 264, Caldwell, J. Worcester vs. Georgia, U. S. Sup. Ct. 1832, 6 Peters, 515, Mar- shall, Ch. J. SUPPLEMENT TO INSULAR CASES APPENDIX. Decisions of Decembeu 2, 1901. After the foregoing Appendix was completed and this volume was in press, the Supreme Court decided the two cases known as the Fourteen Diamond Eings [Pepke) Case, (see pages 467, etseq., of this Appendix, ante, ) involving tlie status of the Philippine Islands as to tariff laws, and the Second Dooley Case, (see pages 501, etseq., of this Appendix, ante,) involving the right to collect duties in Porto Rico on merchandise /rom other ports of the United States. As it was too late to include those decisions in their proper places in the foregoing Appendix, they have been added as a supplement thereto, and they appear in full in the fol- lowing pages. The Fourteen Diamond Rings. In error to the District Court of the United States for the Northern District of Illinois. No. 158. October term, 1901. [Decided December 2, 1901.] For appearances, abstract of record, briefs and arguments, see p. 467, ante, of this appendix. Mr. Chief Justice Fuller delivered the opinion of the court as fol- lows: " Emil J. Pepke, a citizen of the United States and of the State of North Dakota, enlisted in the First Regiment of the North Dakota United States Volunteer Infantry, and was assigned for duty with his regiment in the island of Luzon, in the Philippine Islands, and continued in the military service of the United States until the regiment was ordered to return, and, on arriving at San Francisco, was discharged September 25, 1899. " He brought with him from Luzon fourteen diamond rings, which he had there purchased, or acquired through a loan, subsequent to the ratification of the treaty of peace between the United States and Spain, February 6, 1899, and the proclamation thereof by the President of the United States, April 11, 1899. " In May, 1900, in Chicago, these rings wore seized by a customs officer as having been imported contrary to law, without entry, or declaration, 5G3 564 TKEATY-MAKING POWER OF THE U. S. or payinent of duties, and an information was tiled to enforce the for- feiture thereof. "To this Pepke tiled a plea setting up the facts, and claiming that the rings were not subject to customs duties; the plea was held insuf- ticieut; forfeiture and sale were decreed; and this writ of error was prosecuted. "The tariff act of July 24, 1897, (30 Stat. 151,) in regulation of com- merce with foreign nations, levied duties ' upon all articles imported from foreign countries.' " Were these rings, acquired by this soldier after the ratification of the treaty was proclaimed, when brought by him from Luzon to Cali- fornia, on his return with his regiment to be discharged, imported from a foreign country ? "This question has already been answered in the negative, in respect of Porto Rico in Be Lima vs. Bidwell, 182 U. S. 1, and unless the cases can be distinguished, which we are of opinion they cannot be in this particular, that decision is controlling. "The Philippines, like Porto Rico, became, by virtue of the treaty, ceded conquered territory or territory ceded by way of indemnity. The teri'itory ceased to be situated as Castine was when occupied by the British forces in the war of 1812, or as Tampico was when occupied by the troops of the United States during the Mexican war, ' cases of tempo- rary possession of teriitory by lawful and regular governments at war witli the country of which the territory so possessed was part.' Tlmr- ington vs. Smith, 8 Wall. 10. The Philippines were not simply occupied but acquired, and having been granted and delivered to the United States, by their former master, were no longer under the sovereignty of any foreign nation. " In Cross vs. Harrison,lG How. 164, the question was whether goods im- ported from a foreign country into California after the cession were sub- ject to our tariff laws, and this court held that they were. ' ^ In De Lima \s. Bidwell the question was whether goods imported into New York from Porto Rico, after the cession, were siibject to duties imposed by the act of 1897 on ' articles imported from foreign coun- tries,' and this court held that they were not. That act regulated commerce with foreign nations, and Porto Rico had ceased to be within that category; nor could territory be foreign and domestic at the same time. " Among other things it was there said : ' The theory that a country remains foreign with respect to the tariff laws until Congress has acted by embracing it within the customs union, presupposes that a country may be domestic for one purpose and foreign for another. It may un- doubtedly become necessary for the adequate administration of a do- mestic territory to pass a special act providing the proper machinery and oflBcers, as the President would have no authority, except under the war power, to administer it himself; but no act is necessary to make it domestic territory if once it has been ceded to the United States. . . . Tills theory also presupposes that teriitory may be held indefi- nitely by the United States; that it may be treated in every particular, INSULAR CASES APPENDIX. 565 Supplement. except for tariff purposes, as domestic territory; that laws may be en- acted iind enforced by officers of the Uniced States sent there for that purpose; that insurrections m ly be suppressed, wars carried on, rev- enues collected, taxes imposed; in short, that everything may be done which a government can do within its own boundaries, and yet that the territory may still remain a foreign country. That this state of things may continue for years, for a century even, but that until Congress en- acts otherwise, it still remains a foreign country. To hold that this can be done as matter of law we deem to be pure judicial legislation. We find no warrant for it in the Constitution or in the powex-s con- ferred upon this court. It is true the nonaction of Congress may oc- casion a temporary inconvenience; but it does not follow that cotirts of justice are authorized to remedy it by inverting the ordinary meaning of words.' " No reason is perceived for any different ruling as to the Philippines. By the third article of the treaty Spain ceded to the United States 'the archipelago known as the Philippine Islands,' and the United States agreed to pay to Spain tlie sum of twenty million dollars within three months. The treaty was ratified; Congress appropriated the money; the ratification was proclaimed. The treaty-making power; the executive power; the legislative power, concurred in the completion of the trans- action. '•' The Philippines thereby ceased, in the language of the treaty, 'to be Spanish.' Ceasing to be Spanish, they ceased to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became teri'itory of the United States over which civil government could be established. The result was the same although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States and they became entitled to its protection. " But it is said that the case of the Philippines is to be distinguished from tliat of Porto Rico because on February 14, 1899, after the ratifica- tion of the treaty, the Senate resolved, as given in the margin,* that it was not intended to incorporate the inhabitants of the Philippines into citizenship of the United States, nor to permanently annex those islands. '' We need not consider the force and effect of a resolution of this sort, if adopted by Congress, not like that of April 20, 1898, in respect of Cuba, * " ' Resolved hij the Senate and Ilointe of Representatives of the United States of America in Congress assembled, That by the ratification of tiie treaty of peace with Spain it is not intended to incorporate the inhabitants of the Pliihppiue Islands into citizenship of the United States, nor is it intended to permanently annex said ishxnds as an integral part of tlio territory of the United States ; hut it is the intention of the United States to establish on said islands a government suitable to the wants and conditions of the iTihahitants of said islands to prepare them for local self-government, and in duo time to make such disposition of said islands as will best promote the interests of the United States and the inhab- itants of said islands.' Cong. Rec. 55th Cong. 3d Sess. vol. 32, p. 1847." 566 TREATY-MAKING POWER OF THE U. S. preliminary to the declaration of war, but after title had passed by rati- fied cession. It is enough that this was a joint i-esolution; that it was adopted by tlie Senate by a vote of 26 to 22, not two thirds of a quorum; and that it is absolutely without legal siguificance on the question be- fore us. The meaning of the treaty ciuuot be controlled by subsequent explanations of some of those wlio m;iy have voted to nitify it. What view the House miglit have taken as to the intention of the Senate in ratifying the treaty we are not informed, nor is it material; and if any implication from the action referred to could properly be indulged, it would seem to be that two thirds of a quorum of the Senate did not consent to the ratification on the grounds indicated. "It is further contended that a distinction exists in that while com- plete possession of Porto Kico was taken by the United States, this was not so as to the Philippines, because of the armed resistance of the na- tive inhabitants to a greater or less extent. " We must decline to assume that the government wishes thus to dis- parage the title of the United Slates, or to place itself in the position of waging a war of ci inquest. "The sovereignty of Spain over the Philippines and possession under claim of title had existed for a long series of years prior to the war with the United States. The fact that there were insurrections against her or that uncivilized tribes may have defied her will did not affect the validity of her title. She granted the islands to the United States, and the grantee in accepting them took nothing less than the whole grant. "If those in insurrection against Spain continued in insurrection against the United States, the legal title and possession of the latter re- mained unaffected. "We do not understand that it is claimed that in carrying on the pend- ing hostilities the government is seeking to subjugate the people of a foreign country, but, on the contrary, that it is preserving order and suppressing insurrection in territory of the United States. It follows that the possession of the United States is adequate possession under legal title, and this cannot be asserted for one purpose and denied for another. We dismiss the suggested distinction as untenable. •^ But it is sought to detract from the weight of the ruling in Be Lima vs. Bidwell because one of the five justices concurring in the judgment in that case concurred in the judgment in Boivnes vs. Bidwell, 182 U. S. 244. " In De Lima vs. Bidwell, Porto Rico was held not to be a foreign coun- try after the cession, and that a prior act exclusively applicable to for- eign countries became inapplicable. " In Doiones vs. Bidwell, the conclusion of a majority of the court was that an act of Congress levying duties on goods imported from Porto Rico into New York, not in conformity with the provisions of the Con- stitution in respect to the imposition of duties, imposts and excises, was valid. Four of the members of the court dissented from and five con- curred, though not on the same grounds, in this conclusion. The justice who delivered the opinion in De Lima's case was one of the majority, and was of opinion that although by the cession Porto Rico ceased to INSULAR CASES APPENDIX. 567 Supplement, be a foreign country, and became a territory of the United States and domestic, yet that it was merely 'appurtenant' territory, and 'not a part of the United States within the revenue clauses of the Constitution.' " Tliis view placed the territory, though not foreign, outside of the re- strictions applicable to interstate commerce, and treated the power of Congress, when affirmatively exercised over a territory, situated as sup- posed, as uncontrolled by the provisions of the Constitution in respect of national taxation. The distinction was drawn between a special act in respect of the particular country, and a general and prior act only applicable to countries foreign to ours in every sense. The latter was obliged to conform to the rule of uniformity, which was wholly disre- garded in the former. " The ruling in the case of Be Lima remained unaffected, and controls that under consideration. And this is so notwithstanding four mem- bers of the majority in the Be Lima case were of opinion that Porto Kico did not become by the cession subjected to the exercise of govern- mental power in the levy of duties unrestricted by constitutional limi- tati(ms. " Decree reversed and cause remanded with directions to quash the in- formation." "Mr. Justice Brown delivered a concurring opinion as follows: "I concur in the conclusion of the court in this case, and in the rea- sons given therefor in the opinion of the Chief Justice. " The case is distinguishable from De Lima vs. Bidwell in but one par- ticular, viz., the Senate resolution of February 6, 1899. With regard to this, I would say that in my view the case would not be essentially different if this resolution had been adopted by a unanimous vote of the Senate. To be efficacious such resolution must be considered either (1) as an amendment to the treaty, or (2) as a legislative act qualifying or modifying the treaty. It is neither. "It cannot be regarded as part of the treaty, since it received neither the approval of the President nor the consent of the other contracting power. A treaty in its legal sense is defined by Bouvier as 'a compact made between two or more independent nations with a view to the public welfare,' (2 Law Die. 1136,) and by Webster as 'an agreement, league or contract between two or more nations or sovereigns, formally signed by commissioners properly authorized, and solemnly ratified by the sovereigns or the supreme power of each state.' In its essence it is a contract. It differs from an ordinary contract only in being an agreement between independent states instead of private parties. {Foster vs. Neilson, 2 Pet. 2o3, 314; Head Money Cases, 112 U. S. .')80.) By the Constitution, (art. 2, sec. 2,) the President 'shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.' Obviously the treaty must contain the whole contract between the parties, and the power of the Senate is limited to a ratification of sucii terms as iiave already been agreed upon between the President, acting for the United States, and the commissioners of the other contracting powei*. The 568 TKEATY-MAKrX(5 I'OWER OF THE U. S. Senate has uo right to ratify the treaty and introduce new terms into it, which shall bo obligatory upon the other power, although it may refuse its ratification, or make such ralilication couditional upon the adoption of amendments to the treaty. If, for instance, the treaty with Spain had contained a provision instating the inhabitants of the Philip- pines as citizens of the United States, the Senate might have refused to ratify it until this provision was stricken out. But it could not, in my opinion, ratify the treaty and then adopt a resolution declaring it not to be its intention to admit the inhabitants of the Philippine Islands to the privileges of citizensiiip of the United States. Such resolution would be inoperative as an amendment to the treaty, since it had not received the assent of the President or the Spanish commissioners. "Allusion was made to this question in the New York Indians vs. United States, (170 U. S. 1, 21,) wherein it appeared that, when a treaty with certain Indian tribes was laid before the Senate for ratification, several articles were stricken out, several others amended, a new article added, and a proviso adopted that the treaty should have no force or effect whatever until the amendment had been submitted to the tribes, and they had given their free and voluntary assent thereto. This resolu- tion, however, was not found in the original or in the published copy of the treaty, or in the proclamation of the President, which contained the treaty without the amendments. With reference to this the court observed: 'The power to make treaties is vested by the Constitution in the President and the Senate, and, while this proviso was adopted by the Senate, there was no evidence that it ever received the sanction or approval of the President, It cannot be considered as a legislative act, since the power to legislate is vested in the President, Senate and Hotise of Representatives. There is something, too, which shocks the conscience in the idea that a treaty can be put forth as embodying the terms of an arrangement with a foreign power or an Indian tribe, a material provision of which is unknown to one of the contracting parties, and is kept in the background to be used by the other only when the exigencies of a particular case may demand it. ■ The proviso appears never to have been called to the attention of the tribes, who would naturally assume that the treaty embodied in the Presidential proclamation contained all the terms of the arrangement.' "In short, it seems to me entirely clear that this resolution cannot be considered a part of the treaty. " I think it equally clear that it cannot be treated as a legislative act, though it may be conceded that under the decisions of this court Con- gress has the power to disregard or modify a treaty with a foreign state. This was not done. '' The resolution in question was introduced as a joint resolution, but it never received the assent rf the House of Representatives or the signattire of the President. While a joint resolution, when approved by the President, or, being disapproved, is passed by two-thirds of each house, has the effect of a law, (Const, art. 1, sec. 7,) no such effect can be given to a resolution of either house acting independently of the INSULAR CASES ATPENDlX. 569 Supplement, other. Indeed, the above clause expressly requires coucurreut action upon a resolution ' before the same sh;dl take effect.' "This question was considered by Mr. Attorney General Gushing in his opinion on certain Kesolutions of Congress, (G Ops. Atty. Gen. 080,) in which he held that while joint resolutions of Congress are not dis- tinguishable from bills, and have the effect of law, separate resolutions of either house of Congress, except in matters appertaining to their own parliamentary rights, have no legal effect to constrain the action of the President or Heads of Departments. The whole subject is there elaborately discussed. ■'In any view taken of this resolution it appears to me that it can be considered only as expressing the individual views of the Senators voting upon it. "I have no doubt the treaty might have provided, as did the act of Congress annexing Hawaii, that the existing customs relations between the Spanish possessions ceded by the treaty and the United States should remain unchanged until legislation had been had upon the sub- ject; but in the absence of such provision the case is clearly controlled by that of De Lima vs. Bklwell.''^ Mr. Justice Gray, Mr. Justice Shiras, Mr. Justice White and Mr. Justice McKenna dissented, for the reasons stated in their opinions in De Lima vs. Bidwell, 182 U. S. 1, 200-220, in Dooleij vs. United States, 182 U. S. 222, 236-243, and in Duwnesws. Bidwell, 182 U. S. 244, 287-347. Henry W. Dooley et al.. Plaintiffs in Error, vs. The United States. In error to the Circuit Court of the United States for the Southern District of New York for abstract of recoi'd, appearance, briefs and cases cited see p. 501 of this Appendix, ante. No. 207, October term, 1901. [Decided December 2, 1901.] This was an action begun in the Circuit Court as a Court of Claims by the firm of Dooley, Smith & Co., to recover duties exacted of tliem and paid under protest to the collector of the port of San Juan, Porto Rico, upon merchandise imported into that port from the port of New York after May 1, 1900, and since the Foraker act. This act requires all mer- chandise 'coming into Porto Rico from the United States' to be 'en- tered at the several ports of entry upon payment of fifteen per centum of the duties which are required to be levied, collected and paid upon like articles of merchandise imported from foreign countries.' A demurrer was interposed by tlie District Attorney upon the ground that the court had no jurisdiction of tiie subject of the action, and also that the complaint did not state facts sufficient to constitute a cause of action. The demurrer to the complaint for insuiiiciency was sustained, and the petition dismissed. Mr. Justice Brown delivered the opinion of the court as follows: "This case raises the question of the constitutionality of the Foraker act, so far as it fixes the duties to be paid upon merchandise imported 570 TREATY-MAKING POWER OP THT<: V. S. into Porto Rico from the port of New York. Tlie validity of this re- quiremeut is attacked upon tlie f^round of its violation of that clause of the Constitution (Art. 1, sec. 9) declaring that ' no tax or duty shall be laid on articles exported from any State.' " While the words ' import ' and ' export' are sometimes used to de- note goods passing from one State to another, the word ' import,' in connection with the provisicm of the Constitution that ' no State shall levy any imposts or duties on imports or exports,' was held in Wood- ruff vs. Parham, (8 Wall. 123,) to apply only to articles imported from foreign countries into tlie United States. " That w^as an action to recover a tax imposed by the city of Mobile for municipal purposes, upon sales at auction. Defendants, who were auc- tioneers, received in the course of their business for themselves, or as consignees or agents for others, large amounts of goods and merchandise, the products of other States than Alabama, and sold the same in Mobile to purchasers, in unbroken and original packages. The Supreme Court of Alabama decided the case in favor of the tax, and the case came here for review. " The question, as stated by Mr. Justice Miller, was ' whether merchan- dise brought from other States and sold, under the circumstances stated, comes within the prohibition of the Federal Constitution, that no State shall, without the consent of Congress, levy any imposts or duties on im- ports or exports.' Defendants relied largely upon a dictum in Brown vs. Maryland, (12 Wheat. 419,) to the effect that the principles laid down in that case as to the non- taxability of imports from foreign countries might perhaps apply equally to importations from a sister State. " In discussing this question, and particularly of the power of Congress tolevy and collect taxes, duties, imposts and excises, Mr. Justice Miller observed: 'Is the word, ' impost,' here used, intended to c(mfer upon Congress a distinct power to levy a tax upon all goods or merchandise carried from one State into another? Or is the power limited to duties on foreign imports? If the former be intended, then the power conferred is curiously rendered nugatory by the subsequent clause of the ninth sec- tion, which declares that no tax shall be laid on articles exported from any State, for no article can be imported from one State into another which is not at the same time exported from the former. But if we give to the word ' imposts ' as used in the first mentioned clause, the definition of Chief Justice Marshall, and to the word 'export' the cor- responding idea of something carried out of the United States, we have, in the power to lay duties on imports from abroad, and the prohibition to lay such duties on exports to other countries the power and its limita- tions concerning imposts.' " ' It is not too much to say that, so far as our research has extended, neither the word 'export,' ' import' or 'impost' is to be found in the discussion on this subject, as they have come down to us from tliat time, in reference to any other than foreign commerce, without some special form of words to show that foreign commerce is not meant. Whether we look, then, to the terms of the clause of the Constitution in questi,qf,;ioMai I irr,M-;Y FAriLlTY AA 001334 130